State v. Cleary, 01-289.

• Decision Date: 07 February 2003
• Docket Number: No. 01-289.,01-289.
• Citation: 824 A.2d 509
• Parties: STATE of Vermont v. Donald R. CLEARY
• Court: Vermont Supreme Court

824 A.2d 509

STATE of Vermont v. Donald R. CLEARY

No. 01-289.

Supreme Court of Vermont.

February 7, 2003.

Motion for Reargument Denied March 6, 2003.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and William A. Nelson and Anna Saxman, Appellate Defenders, Montpelier, for Defendant-Appellant.

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

MORSE, J.

¶ 1. Defendant Donald Cleary appeals following his guilty plea to charges of attempted sexual assault and lewd and lascivious conduct. He argues that the district court erred by finding him competent to stand trial contingent upon his receiving the aid of a cognitive facilitator. He also argues that the trial court violated V.R.Cr.P. 11 during the plea hearing by failing to personally address him, establish his knowing and intelligent waiver of his rights, and elicit his acknowledgment of a factual basis for the charges. We conclude that the record supports the district court's competency finding, and that defendant has failed to demonstrate that any Rule 11 deficiencies amounted to plain error. Accordingly, we affirm.

¶ 2. Defendant is a mentally retarded, thirty-six-year-old resident of Hyde Park with an IQ (intelligence quotient) between sixty-five and seventy. While his IQ has remained constant over time, his functional abilities have improved. Defendant lives independently and is employed as a logger.

¶ 3. On three occasions prior to 1991, defendant was charged with criminal offenses but found incompetent to stand trial. Since then, however, he has twice been found competent to stand trial. In 1991, he pled guilty to charges of unlawful trespass, simple assault, and attempted sexual assault. In 1999, he pled guilty to a charge of unlawful trespass based on an incident in which he entered a woman's home. The present charges stem from an alleged sexual assault against his mother.

¶ 4. In connection with those charges, defendant was evaluated by two experts, Dr. Cotton and Dr. Kinsler. Both experts initially found defendant incompetent to stand trial and agreed that the determination was a "close call." Dr. Cotton later changed his opinion and found defendant competent based on material that neither he nor Dr. Kinsler had reviewed before making their initial determinations, including depositions by mental health workers who had supervised defendant and a 1998 competency evaluation by another expert. Dr. Cotton's revised opinion was based on information suggesting that defendant could communicate and cooperate with his mental health supervisors, plan and accomplish goals, and live independently. Dr. Cotton also considered evidence that defendant had willfully manipulated his capacities over time to satisfy his needs.

¶ 5. In a lengthy decision filed on October 16, 2000, the district court found defendant competent to stand trial, noting, among other things, that (1) he had the mental capacity to communicate with counsel and make choices after weighing the risks and benefits of the various options; (2) he had considerable experience with the criminal justice system; (3) he had a basic understanding of his Fifth and Sixth Amendment rights; and (4) he knew the roles and functions of his attorney, the prosecutor and the judge.

¶ 6. The court cautioned, however, that defendant did not fully understand the function and role of the jury because he had never gone to trial. Nevertheless, the court concluded that, with careful explanation and accommodation, defendant could develop a sufficient understanding of the jury's role at trial, and that with such support he would be competent to stand trial.

¶ 7. Following the competency decision, defendant elected to plead guilty to the charges with the understanding that the State would propose a ten-to-twenty-year sentence. At the November 20, 2000 change-of-plea hearing, the trial court suggested that, given defendant's limitations, the Rule 11 colloquy might be more effective if defense counsel asked the questions, with the court assuring itself that the plea was knowing and intelligent. Defense counsel indicated it was a good idea and proceeded to ask defendant a series of questions. The court also asked questions of its own. Following the colloquy, the court expressed its satisfaction, based on defendant's demeanor and his periodic conferences with his counsel, that defendant understood the terms and consequences of his plea.

¶ 8. The sentencing hearing was held approximately six months later, on May 14, 2001. At the hearing, the court sentenced defendant to a term of ten-to-twenty years for sexual assault, and four-to-five years, to be served concurrently, for the lewd and lascivious conduct. Defendant filed an appeal within thirty days of the sentencing decision.

I.

¶ 9. Defendant first argues on appeal that the district court erred by finding him competent to stand trial contingent upon him receiving the assistance of a cognitive facilitator. The State denies that the district court made its finding of competency contingent upon the assistance of a cognitive facilitator, but contends, in any event, that defendant's unconditional guilty plea waived his right to any direct appeal of the competency determination.

¶ 10. We first consider the State's latter contention. It is generally true, as the State notes, that a voluntary guilty plea waives all nonjurisdictional defects in the proceedings leading up to the plea. State v. Armstrong, 148 Vt. 344, 346, 533 A.2d 1183, 1184 (1987). There are, however, exceptions to this general proposition. See, e.g., United States v. Muench, 694 F.2d 28, 34 (2d Cir.1982) (allowing direct appeal challenging effective assistance of counsel, notwithstanding usual waiver rule). Several courts have specifically held that a "defendant's plea of guilty or no contest does not preclude the defendant from raising on direct appeal the issue of competency to plead or stand trial." State v. Wead, 9 Neb.App. 177, 609 N.W.2d 64, 68 (2000); see also People v. Parney, 74 Mich.App. 173, 253 N.W.2d 698, 700 (1977) ("defendant's later guilty plea did not waive the alleged error arising from the prior competency determination"); People v. Armlin, 37 N.Y.2d 167, 371 N.Y.S.2d 691, 332 N.E.2d 870, 874 (1975) (holding that guilty plea did not waive defendant's right to challenge his competency to stand trial on direct appeal). In a different context, the United States Supreme Court observed that "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently `waive' his right to have a court determine his capacity to stand trial." Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) (holding in habeas proceeding that defendant did not waive issue of competence to stand trial by failing to demand competency determination at trial court level). We agree, and thus will treat appeals of competency determinations as an exception to the waiver rule.

¶ 11. We now return to the merits of defendant's competency argument. The test of competency to stand trial is whether the defendant "has 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, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); accord State v. Bean, 171 Vt. 290, 294, 762 A.2d 1259, 1262 (2000). The standard of competency required to plead guilty is the same as the standard required to stand trial. Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); State v. Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993).

¶ 12. The crux of defendant's argument is that, instead of determining whether defendant was competent at that time to stand trial, the court made a prediction that with accommodation he would be competent to stand trial. Defendant claims that this finding of a "predictive" competence violates the Dusky standard of "present" competence. We disagree. As we have recently noted, "[a] competency determination can require special help or services to enable the defendant to meet the constitutional competency standard." In re J.M., 172 Vt. 61, 69, 769 A.2d 656, 663 (2001). In J.M., we held that a developmentally disabled juvenile could be found competent if given proper support, including the aid of a cognitive facilitator; however, we vacated his guilty plea due to the trial court's failure to engage in the required V.R.Cr.P. 11 colloquy, and the competency determination based on the inadequacy of the court's findings. Id. at 63, 71, 769 A.2d at 659, 662-64. There is nothing to prevent a court from qualifying its competency finding and suggesting accommodations that will enable the defendant to better capitalize on his capacity to understand and participate effectively in the proceedings. The court is simply finding the present ability, with the proper tools, to stand trial.

¶ 13. We also note that, to some degree, defendant's argument misses the mark because the court required that he receive accommodation only in the event that his case went to trial. The court recognized that defendant had the capacity to stand trial, but would need accommodation in doing so. For example, the court opined that in order to testify, defendant would need questions phrased in a way that he could understand, the presence of support people, and frequent breaks. The court did not find that defendant was incompetent to enter a plea, or that he required any assistance in order to do so. Because defendant did not proceed to trial, but instead entered a plea, questions regarding the propriety of the order requiring assistance in the event of a trial are only indirectly related to his guilty plea.

¶ 14. The district court found defendant competent to enter a plea, as...