People v. Matheson

• Decision Date: 20 July 1976
• Docket Number: Docket No. 23577
• Citation: 245 N.W.2d 551,70 Mich.App. 172
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman MATHESON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 551

245 N.W.2d 551

70 Mich.App. 172

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman MATHESON, Defendant-Appellant.

Docket No. 23577.

Court of Appeals of Michigan.

July 20, 1976.

Released for Publication Oct. 1, 1976.

Reid & Reid by Joseph D. Reid, Lansing, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David L. Smith, Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and KAUFMAN and QUINNELL, ^* JJ.

KAUFMAN, Judge.

Defendant was originally charged with kidnapping, M.C.L.A. § 750.349; M.S.A. § 28.581, and with carrying a weapon in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424. On January 7, 1975, defendant's plea of nolo contendere to the crime of carrying a weapon in a motor vehicle was accepted by the Eaton County Circuit Court. The court subsequently sentenced defendant to a term of from 3 to 5 years in prison with the recommendation that he receive psychiatric counseling. Defendant now appeals of right.

On appeal defendant propounds two claims of error, one of which merits discussion. In this claim, defendant argues that the court erred in accepting his plea when it believed or had reason to believe that defendant was not competent to plead. This contention requires a brief recitation of the proceedings in this case.

Prior to the preliminary examination, the circuit court, upon the stipulation of the parties, ordered defendant committed to the Forensic Center for a competency evaluation. The results of that evaluation were communicated to the court in the form of a diagnostic report. Although the examiner reported the presence of 'moderate mental illness', he decided that the statutory test of competence had been satisfied, M.C.L.A. § 767.27a; M.S.A. § 28.966(11). ¹ A hearing on the question was conducted on November 14, 1974. The diagnostic report was offered and received by stipulation as the only evidence at the hearing. Based solely on that report, the court found the defendant mentally competent to stand trial and remanded the case for preliminary examination. Defendant did not object to the finding of competence nor did he file an interlocutory appeal on that finding.

At the plea-taking, the court, with both parties' approval, examined the preliminary examination transcript. This transcript disclosed the bizarre facts on which the charges against defendant were founded. At the preliminary examination, Jane Lindsey, a friend of the defendant, testified that defendant came to her house in the early morning hours of October 17, 1974, and requested aid from Mrs. Lindsey and her husband. Defendant, who was accompanied by his wife and three small children, professed fear for his life and the lives of his family. He stated that he had started a gang war and that a 'contract' had been taken out on his life. Defendant told the Lindseys that, on the way to their house, he had been involved in a high speed auto chase. During the conversation, defendant showed the Lindseys a .38-caliber pistol.

The Lindseys helped defendant hide his car and took him and his family to the cottage of a friend. When the defendant suggested that everyone accompany him in one of the residents' van, most of the group objected. It was at this point that defendant first suggested that he could not allow anyone to remain behind. Mr. Lindsey managed to get out, which prompted defendant to tell the others he didn't care because he would get publicity. The remainder of the group then got into the van and drove away. After traveling for a time one of defendant's friends convinced defendant that he should be allowed to leave and was dropped off along the roadway. The police were then notified. When the van was finally spotted by police, defendant indicated that he was a CIA agent and had nothing to fear from the police. Nevertheless he ordered his wife to elude the police and run their roadblock, but she was unsuccessful in this attempt.

The rule governing claims such as defendant's, GCR 1963, 785.7(2), requires that

'(t)he Court shall not accept a plea of * * * nolo contendere without personally addressing the defendant and determining that the plea is freely, understandingly and voluntarily made.' ²

This determination need not be made in any particular manner and 'may be concluded from the judge's acceptance of the plea even though he makes no separate finding of fact'. Guilty Plea Cases, 395 Mich. 96, 126, 235 N.W.2d 132 (1975). As with most matters dependent on the judge's ability to personally assess the behavior of a defendant, the determination of competence is consigned to his discretion. In accepting defendant's plea, the court here made no explicit finding of competence, nor did it make any record on the issue.

On appeal, defendant argues that, in concluding defendant was competent to plead, the trial court erroneously relied on the earlier determination that he was competent to stand trial. Defendant contends that competence to plead involves a 'different, higher standard' than that utilized to assess competence to stand trial.

In support of his argument, defendant cites the Ninth Circuit Court of Appeals decision in Sieling v. Eyman, 478 F.2d 211 (CA 9, 1973). In Sieling, after he had been deemed competent to stand trial, defendant changed his plea to guilty. The court made a brief inquiry into his understanding of the plea proceeding and accepted the plea. On appeal, the Court held that a finding of competence to stand trial would not suffice as a finding of competence to plead guilty. The Sieling Court reasoned that, whereas the former determination concerned a defendant's ability to understand the proceedings and assist in his defense, the question of competence to plead required a determination of a defendant's ability to competently waive important constitutional rights. In so holding, the Court relied on Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). In Westbrook, a somewhat cryptic per curiam decision, the United States Supreme Court held that, although a state court had found the defendant competent to stand trial, a further inquiry was necessary to determine if he was competent to waive his constitutional right to counsel.

Plaintiff's reply to defendant's novel and well-articulated argument is completely unresponsive and unhelpful. Plaintiff merely makes the facile argument that the plea should be affirmed because the trial court was in a better position to assess defendant's competence than is this Court. This argument ignores the possibility raised by defendant's appellate claim that the trial court applied an incorrect standard in determining defendant's competence. It also places this Court in the unhappy position of having to make the argument of plaintiff's appellate counsel for him.

The Sieling v. Eyman rationale has been expressly rejected in four other jurisdictions. Prior to Sieling, the Tenth Circuit Court of Appeals held that:

'The test of mental competency At the time of trial or the entering of a plea in a criminal case is that the accused have 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him.' Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960).' Wolf v. United States, 430 F.2d 443, 444 (CA 10, 1970). (Emphasis supplied.)

Wolf was subsequently followed by the Fifth Circuit Court of Appeals which rejected a defense contention that the Court adopt a higher standard for determining competence to plead than for ascertaining competence to stand trial. Malinauskas v. United States, 505 F.2d 649, 653--4 (CA 5, 1974).

In People v. Bassett, 25 Ill.App.3d 927, 323 N.E.2d 607 (1975), the court considered the interplay of the Sieling, Wolf, and Malinauskas cases and decided to apply the same competence standard to both trial and plea proceedings. The Bassett court founded its holding on three grounds: (1) unlike Sieling, prior proceedings in Bassett had not presented a substantial question as to the defendant's competence; (2) the procedural rule in Sieling provided the trial court with little information concerning the defendant's competence; (3) the Wolf and Malinauskas cases were more in conformance with applicable Illinois precedent.

Having analyzed these and other relevant decisions and reviewed applicable Michigan precedent, we are convinced that the statutory standards for determining competence to stand trial are equally applicable to competence to plead. We accordingly reject defendant's request to apply a higher standard to plea-taking proceedings. However, we also find that, because competence is an ongoing concern, a trial court should not place absolute reliance on a prior competence determination. The court must recognize its obligation to render a separate finding of competence at the time and place the plea is offered. More importantly, where the record provides significant evidence of possible incompetence, the trial court should provide a record of its deliberation rather than merely allowing its acceptance of the plea to serve as an implied finding of competence.

Although the issue of competence to stand trial has received recent, extensive treatment, few Michigan cases have discussed competence to plead. At the time defendant entered his plea, the law provided that:

'A person is incompetent to stand trial within the meaning of this section if he is incapable of understanding the nature and object of the proceedings against him, of comprehending his own condition in reference to the proceedings, or of assisting in his defense in a rational or reasonable manner.' M.C.L.A. § 767.27a(1); M.S.A. § 28.966(11)(1). ³

Recent cases concerning competence to stand trial have stressed that the issue of incompetence can only be raised by evidence of incompetence. People v. Blocker, 393 Mich. 501,...