State v. Bradford, 85-881
| Decision Date | 24 October 1986 |
| Docket Number | No. 85-881,85-881 |
| Citation | 223 Neb. 908,395 N.W.2d 495 |
| Parties | STATE of Nebraska, Appellee, v. Walter Lee BRADFORD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction. An evidentiary hearing on a motion seeking postconviction relief is not required when the motion, files, and records of the case show the defendant is not entitled to relief.
2. Postconviction. An applicant proceeding under the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985), must allege facts amounting to a violation or infringement of constitutional rights. The pleading of mere conclusions of fact or of law is not sufficient to require an evidentiary hearing.
3. Mental Competency: Pleas: Trial. A defendant is competent to plead or stand trial if he has the present capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to make a rational defense.
4. Mental Competency: Pleas: Trial. Mental retardation does not necessarily imply incompetence to plead or stand trial.
5. Mental Competency. The issue of competency is one of fact to be determined by the trial court, and the means used to resolve it are discretionary with the court.
6. Mental Competency: Appeal and Error. The determination by the trial court on the issue of competency will not be disturbed unless the evidence is insufficient to support the finding.
7. Postconviction: Proof. The person seeking postconviction relief bears the burden of establishing the basis for relief.
8. Postconviction: Effectiveness of Counsel: Proof. To establish ineffective assistance of counsel entitling a criminal defendant to postconviction relief, he must show trial counsel's failure to perform at least as well as a lawyer with ordinary skill and training in the criminal law or his failure to conscientiously protect his client's interests. The defendant also must show prejudice on the record as a result of counsel's actions or inactions.
William L. Gilmore, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Laura L. Freppel, for appellee.
The defendant, Walter Lee Bradford, appeals from the denial of his motion to vacate his sentence pursuant to the Nebraska Postconviction Act. Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985).
In 1983 the defendant was sentenced to life imprisonment upon a plea of guilty to first degree murder in the death of Gordon Robert Eno. Upon direct appeal we examined the record for error, determined that the appeal was frivolous, and affirmed the judgment pursuant to Neb.Ct.R. of Prac. 3B(4) (rev. 1986). 216 Neb. xxix (case No. 84-041, Mar. 21, 1984).
On April 9, 1985, the defendant filed a motion to vacate sentence, alleging that his constitutional rights had been violated on grounds that he was mentally retarded, had received ineffective assistance of counsel, and was not competent to enter a plea of guilty. The State subsequently filed a motion for an order denying the defendant an evidentiary hearing. On October 11, 1985, the trial court entered an order denying an evidentiary hearing and overruling the defendant's motion to vacate his sentence, finding that a review of the motion, files, and records in the case showed that the defendant was not entitled to relief. The defendant has appealed from that order and contends that (1) he should be granted an evidentiary hearing to determine whether his plea was made knowingly, intelligently, and voluntarily and (2) he was denied effective assistance of counsel because defense counsel failed to raise the issue of the defendant's mental competency.
An evidentiary hearing on a motion for postconviction relief is not required when the motion, files, and records of the case show that the defendant is not entitled to relief. § 29-3001; State v. Apodaca, 223 Neb. 258, 388 N.W.2d 837 (1986). Moreover, an applicant proceeding under the Postconviction Act must allege facts amounting to " 'a violation or infringement of constitutional rights and the pleading of mere conclusions of fact or of law are [sic] not sufficient to require the court to grant an evidentiary hearing.' " State v. Williams, 218 Neb. 618, 620, 358 N.W.2d 195, 197 (1984) (quoting State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975)).
The defendant's motion seems to assume that there was no evidence before the trial court as to the defendant's competency to plead and stand trial in the proceedings prior to the arraignment at which his plea of guilty was accepted. The record is to the contrary.
In the present case the record shows that defense counsel filed a notice of intent to rely at trial upon the defenses of insanity, mental derangement, diminished capacity, and intoxication. In response, the State filed a motion seeking psychiatric examination of the defendant. The motion was sustained and the court entered an order that Drs. Robert Osborne and H.L. Balters, experts in psychiatry and psychology respectively, examine the defendant regarding his mental capacity at the time of the crime. See Neb.Rev.Stat. § 29-1823 (Reissue 1985).
In his August 26, 1983, report, Dr. Osborne indicated that the defendant was moderately mentally retarded. Dr. Osborne also found the defendant to have an alcohol abuse and dependence problem, mild organic brain syndrome, and a personality encompassing the schizotypal and antisocial personality classifications. Nevertheless, the defendant was, in Dr. Osborne's medical opinion, at the time of the crime, able (1) to understand what he was doing and the nature and quality of his acts, (2) to distinguish between right and wrong, (3) to know that his acts were wrong and deserved punishment, and (4) to form the "attempt" (sic) to do the said acts. Further, the doctor stated that the defendant was competent to stand trial and participate with his attorney in his own defense.
Dr. Balters reported that he found the defendant to possess a full-scale IQ of 52. Although he thought this score underestimated the defendant's true level of intelligence due to a lack of total cooperation in testing, he concluded that the defendant had a mentally retarded level of intellectual functioning. Dr. Balters also noted the defendant possessed some form of organic cerebral impairment and some schizophrenic processes, but not of the type which would grossly distort his involvement in reality. Finally, Dr. Balters stated that the defendant had sufficient mental capacity at the time of the crime (1) to understand what he was doing and the nature and quality of his acts, (2) to distinguish right from wrong with respect to the quality of his acts, (3) to recognize that such acts were wrong and deserved punishment, and (4) to form the intent to do such acts. Dr. Balters gave no opinion as to the defendant's competency to stand trial.
Trial counsel subsequently moved for psychiatric examination of the defendant by Dr. David Kentsmith. This motion was sustained, but a report of Dr. Kentsmith's examination was never offered in evidence. This was the result of a conscious decision by trial counsel. Numerous other motions were filed by defense counsel prior to September 2, 1983, in preparation for the defendant's defense at trial.
On September 2, 1983, the defendant was rearraigned on the murder charge and entered a plea of guilty. The court questioned the defendant about the voluntariness of the withdrawal of his earlier not guilty plea, whether he understood the penalty for conviction of the crime, his education, work experience, and whether he had consumed any drugs or alcoholic liquor in the 24 hours preceding the arraignment that might interfere with his ability to understand the proceedings. The court then gave a lengthy advisement of the rights the defendant was waiving by entering his plea. The defendant expressed some confusion about the right against self-incrimination, the State's burden to prove guilt beyond a reasonable doubt, and the...
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