In re JM

• Decision Date: 09 February 2001
• Docket Number: No. 99-368.,99-368.
• Citation: 769 A.2d 656
• Parties: In re J.M., Juvenile.
• Court: Vermont Supreme Court

769 A.2d 656

In re J.M., Juvenile.

No. 99-368.

Supreme Court of Vermont.

February 9, 2001.

Kyle C. Sipples, Caledonia County Deputy State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

Robert Appel, Defender General, and Anna Saxman, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

J.M., a fourteen-year-old mentally retarded juvenile, appeals from a competency finding and conditional plea entered in the Caledonia Family Court. J.M. raises two issues on appeal. First, he claims that the court erred, in violation of V.R.Cr.P. 11 and his constitutional right to due process of law, in accepting a plea without determining whether he understood the nature of the charge, the penalties, and the rights he was waiving; whether the admission was knowing and voluntary; and whether there was an underlying factual basis for the plea. The State concedes that the court failed to comply with Rule 11. Second, he contends that the court erred in finding him competent to stand trial, and that its findings do not support the competency decision. We agree that the family court did not satisfy its obligations under Rule 11, and we reverse the judgment of guilt. We also agree with J.M. that the family court's findings on the issue of competency were inadequate. We remand for a new competency determination, and if J.M. is found competent, for a new plea and further proceedings consistent with that plea.

The Caledonia County State's Attorney filed four petitions against J.M. accusing him of simple assault in violation of 13 V.S.A. § 1023(a)(1), unlawful mischief in violation of 13 V.S.A. § 3701(c), disorderly conduct in violation of 13 V.S.A. § 1026, and lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602. The family court held a competency hearing over three days and found J.M. competent to face a delinquency proceeding. J.M. then entered into a conditional plea agreement, pursuant to which he admitted the allegations of simple assault, and the State dismissed the other charges. J.M. was placed on juvenile probation. This appeal followed.

We start with the issue of Rule 11 compliance. Following the court's determination that J.M. was competent to face a delinquency charge, the parties submitted an agreement to the court whereby J.M. would enter a conditional plea to the charge of simple assault and be placed on probation, and the State would dismiss the other charges against him. The agreement also reserved to J.M. the right to appeal the competency ruling. The court approved this agreement. It failed, however, to engage in any Rule 11 colloquy, and J.M. made no admission on the record.

The Family Court Rules provide that V.R.Cr.P. 11 applies in juvenile delinquency proceedings. V.R.F.P. 1(a)(1) (Rules of Criminal Procedure apply to all delinquency proceedings except as provided by this rule.); V.R.F.P. 1(a)(3) (Rule 11 applies, but is modified so that admissions and denials replace pleas of guilty and not guilty). Indeed, V.R.F.P. 6(d)(3) provides specifically that the court may not accept a juvenile's waiver of constitutional rights or admission unless it determines, among other things, that there is a factual and legal basis for the waiver or admission, that the attorney has investigated the relevant facts and law and consulted with the juvenile, and that the juvenile has entered into the waiver or admission knowingly and voluntarily. While V.R.F.P. 6(d)(4) sets forth circumstances in which a waiver or admission may be approved if the juvenile is unable, because of mental or emotional disability, to understand the nature and consequences of the waiver or admission, or is unable to communicate with respect thereto, the rule expressly exempts cases in which it is alleged that a person has committed a crime or juvenile act. In such cases, regardless of disability, "that person's knowing and voluntary consent shall be required with respect to the waiver or admission." Id.

In this case, the record reveals that the court failed to conduct any V.R.Cr.P. 11 colloquy whatsoever. The court failed to address J.M. and determine whether J.M. understood the charges for which the plea was offered, the penalties provided by law, the fact that he was waiving important constitutional rights, and whether the admission was knowing and voluntary. The brief exchange that took place was between the court and the attorneys, and this exchange was more to ensure that the paperwork was filled out properly than to fulfill the requirements of Rule 11. It is not even clear from the record whether J.M. was present in the courtroom for this exchange. Thus, as the State conceded on appeal, the court committed plain error in failing to conduct a Rule 11 colloquy with the minor. See State v. Thompson, 167 Vt. 383, 387, 708 A.2d 192, 194 (1998). As a result, we must vacate J.M.'s admission.

The second issue involves whether J.M. was competent to face the delinquency adjudication. We start with a more detailed description of the proceedings in the family court. During the first day of the competency hearing on February 18, 1999, the court heard the testimony of three witnesses called by J.M. These witnesses included a psychologist who had been under contract with J.M.'s school system for nearly twenty years, an instructional specialist employed by J.M.'s school system, and a school counselor who worked with J.M. The psychologist submitted a report in which he stated that J.M. had an IQ score of 65 in 1994 and 84 in 1991. On another intelligence test, the Woodcock Johnson knowledge subtest, J.M. had scores of 84 in 1993 and 83 in 1994.

According to the psychologist's report, J.M.'s scores placed him in the "below-average and above the learning impaired range." This is consistent with the American Psychiatric Association definition of mental retardation: "Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test," plus impairments in adaptive functioning such as communication, social/interpersonal skills, functional academic skills, self-care skills, self-direction, work or safety. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 46 (4th ed.1994). Adaptive functioning "refers to how effectively individuals cope with life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting." Id. at 40. The psychologist's report also stated that J.M.'s academic skills were "extremely delayed," and his scores in reading, math, writing, and knowledge represented "an almost total lack of skill and even familiarity with the most basic facts of the written language." The psychologist interpreted these test results and concluded that J.M. had not fully used his potential to learn in school, and that he "rejects learning anything to do with books and writing." The psychologist noted that J.M., although "seriously delayed," had "much more ability than he has applied to learning at school."

During the competency hearing, the psychologist testified that the purpose of his report was to assess J.M.'s eligibility for special education. He testified that typically J.M. would seek to avoid conflict and would follow another's lead rather than use independent judgment, and that he would be suggestible on the witness stand. In response to questions posed by the court, the psychologist testified that J.M's cognitive ability was not congenital, and he drew a distinction between what he termed as someone who was "trainable" versus someone who was "educable." According to his testimony, a "trainable retarded person" is someone who would not be expected "to ever learn to read and would need supervision on the job." The psychologist classified J.M. as "above that" because he was "educable," meaning that he "would need special training," but would "be able to earn a living" and hold down a job.

J.M.'s instructional specialist testified that she had two years experience providing services for 504 students, and that she had been working with J.M. since September of 1999. She categorized his ability to comprehend, reason, and solve problems on an abstract conceptual level, as being that of a third or fourth grader. She also opined that J.M. would probably not be capable of appraising the likely outcomes of a trial, and that under the stress of a trial, J.M. might begin to cry or simply put his head down. Nevertheless, she did concede that it was possible for J.M. to participate in and understand the court process if the proceedings were adequately explained.

J.M.'s school counselor testified that J.M.'s ability to think abstractly and problem solve would be minimal, but she also admitted that hers was not "a professional opinion." In appraising J.M.'s ability to understand the charges against him and assist counsel, she also stated that J.M. had talked to her about the charges against him, and that J.M. had told her that "he knew that he didn't do it because his mother told him" he didn't do it.

In assessing J.M.'s competence, the court appointed Dr. Robert Linder, a forensic psychiatrist, who evaluated J.M. specifically for competence to stand trial. Dr. Linder had performed over 2000 competency evaluations on adults, but had limited experience with mentally retarded juveniles. Dr. Linder performed a two-hour competency evaluation of J.M. He also reviewed the juvenile petitions, affidavits, and the psychologist's report. According to Dr. Linder's report, J.M.'s intelligence test scores were "below average but above the impaired range although he demonstrated extreme delay academically." Dr. Linder's "diagnostic impression" of J.M. was "Mild Mental Retardation or Borderline Intellectual Functioning."

Dr. Linder's report stated that during the interview with...