State v. Al-Kotrani, 29667.

Decision Date28 January 2005
Docket NumberNo. 29667.,29667.
Citation106 P.3d 392,141 Idaho 66
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Zaki Abdul AL-KOTRANI, Defendant-Appellant.
CourtIdaho Supreme Court

Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Eric D. Fredericksen argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Melissa N. Moody argued. EISMANN, Justice.

This is an appeal from a judgment of guilty and a sentence for the crime of lewd conduct with a minor under age sixteen and from the denial of a motion to reduce that sentence. The Defendant entered an unconditional plea of guilty, but now wants to challenge on direct appeal the district court's finding that he was competent to stand trial. He also claims that the district court abused its discretion when imposing the sentence and when denying his motion to reduce the sentence. We hold that by his unconditional plea of guilty the Defendant waived his right to challenge the district court's competency determination and that the district court did not abuse its discretion when imposing and then refusing to reduce the sentence.

I. FACTS AND PROCEDURAL HISTORY

On August 21, 2001, the grand jury indicted the 32-year-old defendant-appellant Zaki Abdul Al-Kotrani (Defendant) with two counts of lewd conduct with a minor under sixteen years of age. Both counts involved the same developmentally delayed, thirteen-year-old victim. The Defendant was arrested, and on September 26, 2001, his attorney entered a plea of not guilty on his behalf.

Pursuant to a motion by defense counsel filed on January 28, 2002, the district court ordered a mental evaluation of the Defendant to determine whether he was competent to stand trial. There was a claim that the Defendant had significant cognitive deficits because of a closed head injury he had suffered at some unspecified time while living in Iraq.

After examining the Defendant, the psychologist issued a written report in which he concluded that the Defendant had indications of brain injury, but may be feigning the magnitude of any cognitive defects. The psychologist concluded that he was unable to evaluate the Defendant's true capacity to assist his attorney. The district court ordered an additional evaluation by the psychologist and an examination by a second psychologist. At the request of the defense, the court also ordered an examination by a neurosurgeon.

In response to the court's order, the first psychologist administered some additional tests to the Defendant that would minimize cultural influence or bias and spoke with the Defendant's employer and family members. Based upon this additional investigation, the first psychologist issued a second written report in which he concluded that the Defendant had cognitive difficulties of sufficient severity to preclude his ability to understand the proceedings and to provide appropriate assistance to his counsel. The psychologist also stated that the Defendant attempts to hide his cognitive deficits by stating that he understands when he does not.

The second psychologist examined the Defendant and reviewed the two written reports of the first psychologist. He then issued a written report in which he concluded that the Defendant was mildly retarded, but had sufficient mental capacity to understand the proceedings and to assist in his own defense. The second psychologist stated that in his opinion the Defendant's lack of complete and genuine effort artificially lowered his scores in the "understanding" and "reasoning" components of the testing.

The neurosurgeon issued a written report after examining the Defendant. His report stated that the Defendant had a normal neurological examination and probably subnormal intelligence. With respect to the head injury, the neurosurgeon stated that if the Defendant had suffered a significant head injury that diminished his cognitive functioning as claimed, he would have been left with some other objectively ascertainable deficit, such as a motor loss, but there were no such deficits.

On October 23, 2002, the district court held a hearing to determine the Defendant's competency to stand trial. After considering the reports from the psychologists and neurosurgeon, the testimony of a jailer and the first psychologist given at an earlier hearing, the Defendant's interactions with the district judge, and other information, the judge issued a decision on November 4, 2002, in which she found that the Defendant was competent to stand trial. On November 22, 2002, the Defendant pled guilty to one count of lewd conduct and the State dismissed the second count. Upon motion by the defense, the district court ordered a psychosexual evaluation of the Defendant. The results of the evaluation were not favorable to the Defendant. The evaluator concluded that the Defendant lacked a basic commitment to honesty, that he did not appear interested in participating in sex offender treatment, and that his risk to re-offend could be managed only by incarceration.

The sentencing hearing was held on May 13, 2003. At the commencement of the hearing, the district stated that she would not follow the plea agreement and she gave the Defendant an opportunity to withdraw his plea of guilty. He declined to do so. At the conclusion of the hearing, the district court sentenced the Defendant to 35 years in the custody of the Idaho Board of Correction, with ten years fixed and the balance indeterminate. The Defendant then timely appealed.

II. ISSUES ON APPEAL

A. Should this Court overrule State v. Green, 130 Idaho 503, 943 P.2d 929 (1997), and hold that a defendant who enters an unconditional plea of guilty does not waive his right to challenge on direct appeal the trial court's ruling that he was competent to stand trial?

B. Did the district court abuse its discretion in sentencing the Defendant?

C. Did the district court abuse its discretion when denying the Defendant's motion for a reduction in his sentence?

III. ANALYSIS

A. Should this Court Overrule State v. Green, 130 Idaho 503, 943 P.2d 929 (1997), and Hold that a Defendant Who Enters an Unconditional Plea of Guilty Does Not Waive His Right to Challenge on Direct Appeal the Trial Court's Ruling that He Was Competent to Stand Trial?

The Defendant in this case entered an unconditional plea of guilty to the charge of lewd conduct with a child under sixteen years of age. "A valid plea of guilty, voluntarily and understandingly given, waives all non-jurisdictional defects and defenses, whether constitutional or statutory, in prior proceedings." Clark v. State, 92 Idaho 827, 832, 452 P.2d 54, 59 (1969). In State v. Green, 130 Idaho 503, 943 P.2d 929 (1997), we held that an unconditional plea of guilty waived the defendant's right to challenge on direct appeal the trial court's ruling that the defendant was competent to stand trial. The Defendant asks us to overrule State v. Green and permit him to challenge on appeal the district court's determination that he was competent to stand trial.

We will ordinarily not overrule one of our prior opinions unless the holding in the case has proven over time to be unwise or unjust. State v. Maidwell, 137 Idaho 424, 50 P.3d 439 (2002). The Defendant has not convinced us that the holding in State v. Green is either unwise or unjust.

A defendant is not required to enter an unconditional plea of guilty. There are two other options that would preserve the right to challenge a trial court's finding of competency. First, the defendant could seek to enter a conditional plea of guilty, reserving the right to challenge on appeal the trial court's competency determination. Rule 11(a)(2) of the Idaho Criminal Rules provides that a criminal defendant, with the approval of the court and the consent of the prosecuting attorney, can enter a conditional plea of guilty, reserving the right to challenge any specified adverse ruling on appeal. If the defendant prevails on the appeal, he or she can withdraw the guilty plea. Second, the defendant can simply go to trial. If found guilty, he or she can challenge the trial court's competency determination on an appeal from the judgment.

The Defendant argues that an allegedly incompetent defendant should not be held to have waived any rights by entering an unconditional plea of guilty. Although such argument has some appeal, it overlooks two facts. First, the Defendant was represented by counsel throughout the proceedings below. There is a strong presumption that his counsel's performance was within the wide range of reasonable professional assistance. State v. Hairston, 133 Idaho 496, 988 P.2d 1170 (1999). Second, the trial court found, after a hearing, that the Defendant was competent to stand trial. On appeal, this Court does not reweigh the evidence regarding competency, but will affirm the district court's finding if it is supported by sufficient, competent evidence, even if the evidence is conflicting. State v. Lovelace, 140 Idaho 53, 90 P.3d 278 (2003). Thus, the real issue is whether the Defendant received the effective assistance of counsel when deciding to enter an...

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