People v. Karpierz

• Decision Date: 05 October 2006
• Docket Number: No. 04CA0081.,04CA0081.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andre J. KARPIERZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

165 P.3d 753

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andre J. KARPIERZ, Defendant-Appellant.

No. 04CA0081.

Colorado Court of Appeals, Div. III.

October 5, 2006.

Certiorari Denied August 27, 2007.

John W. Suthers, Attorney General, Susan E. Friedman, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge GRAHAM.

Defendant, Andre Karpierz, appeals from the trial court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

Over defense counsel's objection, defendant pleaded guilty to first degree murder after deliberation and was sentenced to life in the Department of Corrections (DOC) without the possibility of parole.

Defendant filed a Crim. P. 35(c) motion, seeking to withdraw his guilty plea on the grounds that he was not properly advised by the court concerning a psychiatric evaluation; that he was not competent at the time of the plea; that the examining psychiatrist was biased and had a conflict; and that he received ineffective assistance of counsel. After a hearing, the trial court denied the motion.

This appeal followed.

I. Standard of Review

In reviewing the denial of a Crim. P. 35 motion, we will not disturb the trial court's determination on appeal if the record supports its findings and judgment. See Kailey v. Colo. State Dep't of Corr., 807 P.2d 563 (Colo.1991). It is within "the province of the court, as the trier of fact, to determine the credibility of the witnesses and the weight to be given their testimony." Kailey v. Colo. State Dep't of Corr., supra, 807 P.2d at 567.

II. Advisement

Defendant contends that the trial court failed to advise him about the nature and consequences of a competency hearing and the statutory and constitutional rights attendant thereto. He urges that he should have been advised of his right to counsel and his right against self-incrimination, as required under § 16-8-117, C.R.S.2006, and People v. Branch, 805 P.2d 1075 (Colo.1991), when the trial court ordered a forensic psychiatrist to evaluate whether he was competent at the time he entered a guilty plea. The People contend that the procedural safeguards outlined in § 16-8-117 and People v. Branch, supra, do not apply where a defendant seeks, via a Crim. P. 35(c) postconviction motion, a determination nunc pro tunc whether he was competent at the time he entered a guilty plea. We agree with the People.

Section 16-8-117 states:

When a determination is to be made as to a defendant's competency to proceed. . ., the court shall explain to the defendant the nature and consequences of the proceeding and the rights of the defendant under this section.... The defendant, if he wishes to contest the question, may request a hearing which shall then be granted as a matter of right. At the hearing, the defendant and the prosecuting attorney are entitled to be present in person, to examine any reports of examination or other matter to be considered by the court as bearing upon the determination, to introduce evidence, summon witnesses, cross-examine witnesses for the other side or the court, and to make opening and closing statements and argument. The court may examine or cross-examine any witness called by the defendant or prosecuting attorney and may summon and examine witnesses on its own motion.

The mandatory advisement outlined in § 16-8-117 is necessary to safeguard the defendant's Fifth and Sixth Amendment rights. People v. Branch, supra. Discharge of this responsibility requires a trial court to advise a defendant that he has the right not to say anything to the psychiatrist during the competency examination; that his statements to the psychiatrist can be used against him at the guilt phase of the trial as rebuttal or impeachment evidence; that he has the right to confer with counsel before submitting to the competency examination; and that the court will appoint an attorney for the defendant at state expense if the defendant is unable to retain counsel prior to the competency examination. A trial court's failure adequately to advise a defendant of his Fifth and Sixth Amendment rights and to provide him with the opportunity to confer with counsel prior to the commencement of the competency examination precludes the prosecution from using such statements as substantive evidence during its case-in-chief at the guilt phase of the trial. People v. Branch, supra, 805 P.2d at 1082-83.

As the People point out, People v. Branch, supra, deals only with the prosecutorial use of the defendant's statements to a court-appointed psychiatrist in a court-ordered competency examination during the guilt phase of a criminal trial. The Branch court specifically limited its holding, noting that "[n]othing in our opinion is intended to affect the admissibility of such statements at a trial on the issue raised by a plea of insanity or at a trial on the issue of the defendant's competency to proceed." People v. Branch, supra, 805 P.2d at 1080 n. 2; see also Leick v. People, 140 Colo. 564, 566, 345 P.2d 1054, 1055 (1959) (the determination of sanity after sentence does not require the safeguards of a judicial proceeding because "it does not go to the question of guilt but to its consequences").

Here, the evidence acquired during the retrospective competency examination was not used to establish guilt; defendant had already pleaded guilty and been sentenced. Thus, this is not a situation like that in People v. Branch, supra, where there is the danger that, in the absence of counsel, the defendant might be coerced into giving information which can be used against him. Because defendant already confessed and pleaded guilty, there is no self-incrimination issue. Accordingly, the trial court did not err in failing to advise defendant that he has the right not to say anything to the psychiatrist during the competency examination or that his statements to the psychiatrist can be used against him at the guilt phase of the trial. See People v. Branch, supra; cf. People v. Galimanis, 765 P.2d 644, 647 (Colo. App.1988) ("Self-incrimination, by definition, applies to the admission of evidence to aid in establishing the guilt of the accused, not his sanity.").

Because there is no requirement that a trial court "make a post-conviction competency determination," People v. Palmer, 31 P.3d 863, 869 (Colo.2001), it was not necessary for the trial court to advise defendant of his right to a competency hearing. Further, because the postconviction motion was already set for a hearing when the court ordered defendant to submit to a competency examination, there was no need to advise defendant of his right to a hearing.

It also would have been unavailing for the trial court to advise defendant of his right to confer with counsel prior to submitting to the competency examination because he was already represented by counsel.

Finally, it would have been superfluous for the trial court to advise defendant of his right to contest a competency determination and his right to introduce evidence, summon witnesses, and cross-examine witnesses because defendant had already retained his own expert for the purpose of determining competency.

Thus, the procedural safeguards outlined in § 16-8-117 and People v. Branch, supra, are not applicable here.

III. Examining Psychiatrist

Next, defendant contends that his statutory and constitutional rights were violated when he was evaluated by a psychiatrist who was not "neutral and detached" and by whom defendant had been previously treated. We are not persuaded.

Upon the People's request, the court ordered S.B., a forensic psychiatrist, to conduct a retrospective competency examination of defendant. The People then informed the court and defense counsel that S.B. had previously treated defendant two times upon his entrance into the DOC. However, no objection was lodged by defendant. At the Crim. P. 35(c) hearing, defense counsel did not object to S.B.'s qualification as an expert in forensic psychiatry and stipulated to the admissibility of her report.

Defendant claims that S.B. was not neutral and detached because she was hired by the prosecution. Defendant cites § 16-8-106(1), C.R.S.2006, for the proposition that a competency evaluation must be administered by a "neutral and detached" expert. Section 16-8-106(1) provides:

All examinations ordered by the court in criminal cases shall be accomplished by the entry of an order of the court specifying the place where such examination is to be conducted and the period of time allocated for such examination. The defendant may be committed for such examination to the Colorado psychiatric hospital in Denver, the Colorado mental health institute at Pueblo, the place where he or she is in custody, or such other public institution designated by the court. In determining the place where such examination is to be conducted, the court shall give priority to the place where the defendant is in custody, unless the nature and circumstances of the examination require designation of a different facility. The defendant shall be observed and examined by one or more psychiatrists during such period as the court directs; except that, if the examination is for the purpose of determining the defendant's competency to proceed, then the competency evaluation shall be conducted by a licensed psychiatrist or a licensed psychologist who is trained in forensic competency assessments, or a psychiatrist or psychologist who is in forensic training and practicing under the supervision of a licensed psychiatrist with expertise in forensic psychiatry or a licensed psychologist with expertise in forensic psychology. For good cause shown, upon motion of the prosecution or defendant, or upon the court's own motion, the court may order such further or other examination, including...