State v. Debra A.E.

Decision Date09 September 1994
Docket Number93-0737-CR,Nos. 92-2974-C,s. 92-2974-C
Citation188 Wis.2d 111,523 N.W.2d 727
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. DEBRA A.E., Defendant-Appellant, STATE of Wisconsin, Plaintiff-Respondent, v. Timothy A. NESJA, Defendant-Appellant, . Oral Argument
CourtWisconsin Supreme Court

For the defendant-appellant, Debra A.E., there were briefs (in the court of appeals and supreme court) and oral argument by Keith A. Findley, Asst. State Public Defender.

For the defendant-appellant, Timothy A. Nesja, there were briefs (in the court of appeals) by George A. Limbeck and Timothy A. Nesja, Milwaukee and oral argument by George A. Limbeck.

For the plaintiff-respondent the cause was argued by Sally Wellman, Asst. Atty. Gen. and Mary Bowman, Asst. Atty. Gen., with whom on the brief (in the court of appeals) was James E. Doyle, Atty. Gen.


Timothy A. Nesja appeals from an order of the circuit court for Brown county, Judge Peter J. Naze; Debra A.E. appeals from an order of the circuit court for La Crosse county, Judge Peter G. Pappas. Each appeal is from an order denying the defendant's motion for an evaluation of the defendant's competency to participate in postconviction relief proceedings. 1 The appeals have been consolidated and are before the court on certification from the court of appeals pursuant to sec. (Rule) 809.61, Stats. 1991-92. We reverse both orders and remand the matters to the respective circuit courts to determine whether to rule on the defendants' competency.

Two issues are presented to this court. The primary issue raised in both appeals is the appropriate role of the circuit court when counsel requests a ruling on a defendant's competency during postconviction relief proceedings under sec. 809.30, Stats. 1991-92. 2 We conclude that a circuit court should determine a defendant's competency when it has reason to believe that the defendant is unable, in the postconviction relief proceedings under sec. 809.30, Stats. 1991-92, to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding. As we explain in more detail later, in order to protect incompetent defendants' right to meaningful postconviction relief, as well as the defendants' and the public's interest in expediting postconviction relief and reaching a final determination on the merits, the following procedures are to be applied as appropriate: 1) continuation of postconviction relief proceedings, 2) continuances or enlargement of time limits for postconviction relief, 3) appointment of temporary guardians and 4) permitting defendants who regain competency to raise issues at a later proceeding that could not have been raised earlier because of incompetency.

The second issue, raised only in Nesja's appeal, is whether this court should consider a pro se brief from an indigent defendant when a brief has been submitted by assigned counsel. We conclude that a defendant has no constitutional right to concurrent self-representation and representation by counsel. Nevertheless an appellate court may, in its discretion, consider the issues raised in the defendant's pro se brief. We conclude that none of the issues defendant Nesja raises in his pro se brief has merit.


The facts of the two cases are not in dispute for the purposes of this appeal.


Timothy Nesja was convicted August 30, 1989, of aggravated battery and battery, both with a repeater enhancement. Nesja's competency to stand trial was not raised. On October 2, 1989, the Brown County circuit court sentenced Nesja to nineteen years in prison, consecutive to any other sentence he was serving at the time.

Following the sentencing hearing, Nesja and his trial counsel executed a form entitled "Instructions for Postconviction Relief," indicating Nesja's intention to seek postconviction relief and trial counsel's agreement to file the necessary notice of intent to pursue such relief.

On June 5, 1992, Nesja's newly-appointed counsel filed a notice of intent to seek postconviction relief. On November 16, 1992, his counsel filed a postconviction motion in the circuit court seeking a new trial pursuant to sec. 809.30, Stats. 1991-92.

Subsequently, relying on sec. 971.14, Stats. 1991-92, Nesja's counsel filed a motion for competency proceedings. At the hearing on this motion, Nesja's counsel stated that his client had sent him "volumes of letters" indicating "delusional thinking" and that Nesja was unable to assist counsel in determining the merit of potential issues on appeal.

On February 19, 1993, the circuit court denied Nesja's motions for a new trial and competency proceedings. Nesja's counsel filed a notice of appeal on March 15, 1993, challenging, inter alia, the circuit court's denial of the motion for competency proceedings.


Mental health and competency questions have permeated Debra A.E.'s case since its inception. She was arrested on June 24, 1991, and charged with resisting an officer and battery to a public officer. The charges arose during an incident in which she exhibited signs of mental incompetency.

During initial court proceedings both prosecuting and defense counsel questioned Debra A.E.'s competency. The circuit court found her incompetent to be tried, and she received treatment at the Winnebago Mental Health Institute. The circuit court later found her sufficiently competent to stand trial.

On February 3, 1992, following a jury trial, Debra A.E. was convicted on both counts. The circuit court sentenced her on March 30, 1992, and that same day her trial attorney filed a notice of intent to seek postconviction relief.

New counsel was appointed to represent Debra A.E. in postconviction relief proceedings. Counsel attempted to discuss with Debra A.E. the objectives and issues she wished to pursue on appeal. Debra A.E. did not speak with counsel during his visit to Taycheedah Correctional Institution, did not acknowledge his presence in any way, and did not respond to a letter he sent following his visit.

Because Debra A.E.'s counsel had a good faith doubt about her competency to make decisions regarding further legal proceedings or to assist in such proceedings, counsel filed a motion with the circuit court requesting competency proceedings under sec. 971.14, Stats. 1991-92. The circuit court denied the motion in a one sentence order, without a hearing. Debra A.E.'s attorney appealed the denial to the court of appeals.

Debra A.E.'s counsel asserts that he has no way of knowing if she is willing to accept the risks of pursuing postconviction relief. He conjectures, however, on the basis of the trial record, that she might prefer not to do so. Since she probably would be released from prison before postconviction relief concluded, 3 she might choose to avoid the possible ordeal of another trial and the concurrent danger of a more severe sentence.


An essential facet of these cases is the nature of the postconviction relief that Nesja and Debra A.E. were seeking at the time each requested competency proceedings. Nesja and Debra A.E. are at different stages in the process of pursuing postconviction relief under sec. 809.30, Stats. 1991-92. 4 Section 809.30 (including sec. 974.02), grants defendants the right to raise three challenges after sentencing.

First, a defendant may bring an appeal as of right challenging the conviction or sentence. This appeal is directed to the court of appeals and begins with the filing of a notice of intent to pursue postconviction relief. Section 809.30(2)(b), Stats. 1991-92. The notice does not commit a defendant to prosecuting an appeal. 5 To continue with the appeals process, a defendant must file a notice of appeal. Section 809.30(2)(h), Stats. 1991-92.

Second, a defendant may file a motion for postconviction relief with the circuit court. Such motions may request remedies already sought at and rejected by the circuit court such as dismissal, mistrial or objection to jury instructions, or they may raise new issues such as new evidence or allegations of ineffective assistance of counsel. A defendant provisionally initiates this process by filing a notice of intent to pursue postconviction relief, but filing such notice does not obligate a defendant to pursue postconviction relief. To initiate proceedings a defendant must file a motion seeking postconviction relief.

Third, a defendant whose motion for postconviction relief has been denied by the circuit court can appeal the order of denial to the court of appeals. This appeal can be combined with an appeal as of right challenging the underlying conviction. Section 809.30(2)(j), Stats. 1991-92.

Nesja's case falls under the third scenario. His motion for postconviction relief was denied by the circuit court. His notice of appeal challenges both the denial of his motion for postconviction relief and his underlying conviction.

Debra A.E. has filed only a notice of intent to seek postconviction relief with the circuit court. She has taken no further steps toward securing postconviction relief.


The first question we are asked to resolve is the appropriate role of the circuit court when counsel requests a competency determination for a defendant during postconviction relief proceedings. This question of law is one of first impression in this state. 6 The decisions of other states provide little guidance. Because competency is a focal point of this question, we begin by describing the standard of competency required for initiating or continuing postconviction relief proceedings under sec. 809.30, Stats. 1991-92.

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. 7 Whether a person is competent depends on the mental capacity that the task at issue requires. 8 One task required of defendants during postconviction...

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