State v. Byrge

Decision Date17 March 1999
Docket NumberNo. 97-3217-CR,97-3217-CR
Citation594 N.W.2d 388,225 Wis.2d 702
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Jeramey J. BYRGE, Defendant-Appellant. d
CourtWisconsin Court of Appeals

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Sally L. Wellman, assistant attorney general.



Jeramey J. Byrge appeals from a judgment of conviction for first-degree intentional homicide and related felonies. The judgment was entered following Byrge's withdrawal of his not guilty and not guilty by reason of mental defect (NGI) pleas and his entry of no contest pleas to the charges. Byrge also appeals from an order denying postconviction relief.

On appeal, Byrge contends that: (1) he was not competent to participate in the proceedings; (2) the plea colloquy was defective because the trial court did not advise him that the court could set a parole eligibility date pursuant to § 973.014(1), STATS.; and (3) his trial counsel was ineffective.

We reject all of Byrge's arguments. We affirm the judgment and the postconviction order.


On August 25, 1994, the State filed a complaint against Byrge alleging that he committed the first-degree murder of Joan Wagner contrary to § 940.01(1), STATS. In addition, the complaint charged Byrge with the following related crimes: (1) hiding a corpse pursuant to § 940.11(2), STATS.; (2) false imprisonment pursuant to § 940.30, STATS.; (3) bail jumping pursuant to § 946.49(1)(b), STATS.; and (4) operating a motor vehicle without the owner's consent pursuant to § 943.23(2), STATS. Following a preliminary hearing, Byrge was bound over for trial. The information alleged the same counts charged in the complaint.

On September 23, Byrge entered pleas of not guilty to all the charges. On October 24, Byrge amended his pleas to include NGI pleas to the charges. On November 15, Byrge withdrew his not guilty pleas to all the charges except the false imprisonment charge, and he entered pleas of no contest. However, Byrge continued to stand on his NGI pleas as to all the charges. 1

On March 20, 1995, Byrge's trial counsel requested a hearing as to Byrge's competency to proceed. On April 21, three days before the scheduled jury trial on Byrge's NGI pleas, the trial court was prepared to conduct the competency hearing. However, the court's appointed psychiatrist was not available, and the matter was continued to the following Monday when the jury trial on the NGI pleas was also scheduled.

At the conclusion of the competency hearing on the following Monday, the trial court determined that Byrge was competent to proceed to trial. Byrge then sought to reinstate his not guilty pleas. The court denied the motion. Byrge then asked to withdraw his NGI pleas. After conducting a colloquy with Byrge, the trial court permitted Byrge to withdraw the NGI pleas and adjudged him guilty of the four offenses to which he had pled no contest. At the State's request, the court then dismissed the false imprisonment charge. The court ordered a presentence examination.

At the sentencing, the trial court sentenced Byrge to life imprisonment on the first-degree murder conviction with a parole eligibility date set for July 2, 2095. In addition, the court imposed a consecutive five-year term on the hiding a corpse conviction and concurrent five-year terms on the bail jumping and operating without consent convictions.

Postconviction, Byrge challenged, inter alia, the trial court's determination that he was competent to proceed, the effectiveness of his trial counsel and the adequacy of the plea colloquy. The trial court rejected these challenges, and Byrge renews these claims on appeal.

A. Competency to Proceed
1. Standard of Appellate Review

Byrge challenges the trial court's determination that he was competent to proceed. As a threshold issue, the parties dispute our standard of review. Byrge contends that we should apply a de novo standard. He relies on Chief Justice Shirley S. Abrahamson's concurring opinion in State v. Garfoot, 207 Wis.2d 214, 558 N.W.2d 626 (1997), although he concedes that the majority opinion in Garfoot holds that the "clearly erroneous" standard of review applies to a trial court's determination of a defendant's competency to stand trial. See id. at 217, 558 N.W.2d at 628. We obviously must follow the supreme court's holding in Garfoot. Therefore, we apply the clearly erroneous standard. 2

2. The Trial Court's Competency Determination

Byrge contends that the trial court erroneously determined that he was competent to proceed. The State correctly opens its response by citing to the supreme court's language in Garfoot :

The basic test for determining competency was established by the United States Supreme Court in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). A person is competent to proceed if: 1) he or she possesses sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding, and 2) he or she possesses a rational as well as factual understanding of a proceeding against him or her. Dusky, 362 U.S. at 402, 80 S.Ct. 788. The Court later expanded on this test noting that "a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

Wisconsin Statutes § 971.13(1) is the codification of the Dusky test. In Wisconsin, if a defendant claims to be incompetent, the court shall find him incompetent to proceed unless the state can prove by the greater weight of the credible evidence that the defendant is competent under the two-part Dusky standard as explained by the court in Drope.

Garfoot, 207 Wis.2d at 223, 558 N.W.2d at 630.

Byrge appears to argue that the law applies differing standards for a competency determination depending on the stage of the proceedings. Because this case concerns the critical decision to withdraw prior not guilty and NGI pleas and enter pleas of no contest, Byrge argues that a higher or more demanding standard is necessary. Byrge relies on the supreme court's language in State v. Debra A.E., 188 Wis.2d 111, 124-25, 523 N.W.2d 727, 732 (1994):

Competency is a contextualized concept; the meaning of competency in the context of legal proceedings changes according to the purpose for which the competency determination is made. Whether a person is competent depends on the mental capacity that the task at issue requires. [Footnotes omitted.]

We see nothing in this language that changes the black letter law for a competency determination. Debra A.E. merely explains that each competency determination must be tailored to the facts of the particular case and the stage of the proceedings in which the issue is raised. However, the legal standard for competency remains the one reaffirmed in Garfoot.

In this case, the only testimony offered at the competency hearing was that of Dr. Ralph K. Baker, whom the trial court had appointed as its expert regarding Byrge's NGI pleas. When Byrge raised the competency issue, the court directed Baker to also make a report on that question. Baker acknowledged that Byrge was not in good mental health and had a "great deal of anxiety and frustration and depression." Nonetheless, Baker concluded that Byrge had the capacity to cooperate with his attorney, to assist in his own defense and to understand the proceedings. 3 As such, Baker concluded that Byrge was competent to proceed. Relying on this testimony, the court determined that Byrge was competent to proceed.

In support of his argument against the trial court's competency determination, Byrge alludes to the reports submitted by his expert, Dr. A.A. Lorenz, and the State's expert, Dr. Frederick Fosdal. However, these doctors did not testify at the competency hearing and their reports were not offered as evidence at the hearing.

The trial court's finding that Byrge was competent to proceed was supported by Baker, the only witness who testified at the hearing. The court's finding is not clearly erroneous. We affirm the competency finding.

B. Plea Colloquy/Parole Eligibility

Byrge contends that the trial court's plea colloquy was defective because he was not advised that the court could set a parole eligibility date. This is an issue of first impression in Wisconsin. 4

Section 973.014(1), STATS., requires a sentencing court to make a parole eligibility determination for a defendant sentenced to life imprisonment. The court has three options: (1) determine that the defendant is eligible for parole pursuant to § 304.06(1), STATS.; (2) determine a parole eligibility date; or (3) determine that the defendant is not eligible for parole. See § 973.014(1)(a)-(c). Here, the trial court selected the second option and fixed Byrge's parole eligibility date at July 2, 2095, a date obviously beyond Byrge's life expectancy. The court's plea colloquy with Byrge, while extensive and otherwise complete, did not advise Byrge of the court's options under § 973.014 or, specifically, that the court could fix a parole eligibility date. Byrge contends that this failure was error. He rests his argument on both statutory and constitutional grounds.

Byrge notes that § 971.08(1)(a), STATS., requires the trial court to determine that the defendant understands "the potential punishment if convicted." See also State v. Bangert, 131 Wis.2d 246, 262, 389 N.W.2d 12, 21 (1986). As to his constitutional argument, Byrge cites to ...

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