State v. McLean

• Decision Date: 28 March 2019
• Docket Number: P1/2015-3840AG
• Parties: STATE OF RHODE ISLAND v. ANDREW McLEAN
• Court: Superior Court of Rhode Island

STATE OF RHODE ISLAND v. ANDREW McLEAN

P1/2015-3840AG

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

March 28, 2019

AMENDED DECISION

KRAUSE, J.

Andrew McLean's current (now fourth) attorney and the chief forensic psychiatrist at Rhode Island Hospital say that McLean is not competent to stand trial. McLean's three prior defense attorneys and the director of forensic psychiatry at Eleanor Slater Hospital say that he is. So does this Court.

* * *

On November 24, 2015, a grand jury returned an indictment charging Andrew McLean and two others with first degree robbery of a pawnshop, assault with a dangerous weapon (shooting the pawnbroker in the head), conspiracy, and ancillary firearm offenses. On March 22, 2016, assisted by retained (and his first) attorney John M. Cicilline, McLean pled guilty to first degree robbery in exchange for a parolable life sentence and concurrent ten-year terms for other charges. He also received a mandatory consecutive, non-parolable twenty-year term, which was suspended with probation, for discharging a firearm and injuring the shopkeeper during the robbery.¹

Some months later, McLean learned from ACI inmates that Mr. Cicilline had mistakenly told him, prior to the guilty plea, that his initial parole eligibility date would be in ten years, instead of the twenty years which the Legislature had recently decreed for a life term on a first degree robbery charge. With the assistance an of an ACI inmate librarian, McLean filed a pro se postconviction relief (PCR) application based upon ineffective assistance of counsel and asked that his guilty plea be vacated. Since he could no longer afford counsel, the Court appointed Glenn Sparr, an experienced criminal defense attorney, to represent him in his pursuit of the PCR petition. At the March 24, 2017 PCR hearing, Mr. Cicilline readily acknowledged that he had erred, and the prosecutor also admitted that he, too, had been unaware that the ten-year parole eligibility had been extended to twenty years and that he had misinformed Mr. Cicilline of the ten-year period. PCR Hr'g. at 5, Mar. 24, 2017.

The Court, with Mr. Sparr's participation, thoroughly and carefully explained to McLean that if his PCR application were granted, all of the original counts in the indictment would be restored and that this Court would no longer engage in any binding plea negations. That colloquy included the following dialog, during which McLean was under oath:

MR. SPARR: I have met with Andrew three times about this since I've been appointed, and I indicated to him that I was going to find merit in one of his contentions. I will also put on the record that in my opinion he is making this request of this Court knowing and voluntary [sic].

I have discussed with him the ramifications of making this request to the Court, that he obviously doesn't have to do this. That if he wanted to, he could withdraw his request and his application and could leave well enough alone, so to speak, but I believe, based on my conversations with him, that this is what he does want to do. I know the Court will address him, but I do believe that he is makingthis request, if this is what he still wants to do, knowing and voluntary [sic] and intelligently. ***

THE COURT: Mr. McLean, I want to be sure that I have your assent to the application that has been filed and the comments that Mr. Sparr has made, that you are in full agreement with his representations to the Court, that you are in full agreement with that which he seeks from the Court, namely, essentially to have your guilty pleas vacated, and that the matter would thus be back in the process as if you had never pled guilty to this case, the matter would simply be pending and it would be back to, if I can use the vernacular, square one.

Is that your desire, sir?

MR. MCLEAN: Yes.

Q. You understand that if this post-conviction petition for relief is granted, not only are you back to square one, but I would advise you that this Court will in no way in the future engage in any binding plea negotiations or discussions with counsel for you or counsel for the state, and only one of two things will happen, or possibly three things: The matter will go to trial on all counts, we understand that; or the state will dismiss the case. I don't know that that's very likely; or thirdly, you may later decide to change your mind and plead to some or all of the counts, but if the third option occurs, this Court will not bind itself in any way to any sentence that would be imposed under those circumstances.

Do you understand all three of those?

A. The last one -

Q. I can't hear you.

A. I said the last one I kind of don't understand. The third one.

Q. What part did you not understand, sir?

A. The third one.

Q. That is, if you went to trial or that if you plead guilty later on?

A. Yeah.

Q. If you plead guilty later on, I'm telling you after today, if I grant this petition, I'm not binding myself to any kind of sentence that will ever be imposed in this case. You're back to square one. I am not going to get involved and get involved in any binding plea agreements whatsoever.

A. Oh.

Q. Do you understand that?

A. Yes.

Q. Do you agree to that?

A. Yes.

Q. Okay. Very well. The state not voicing any objection to the particular circumstances present in this case, and the defendant—excuse me—the applicant being insistent on pursuing this application, knowing full well the consequences and ramifications, the petition is granted. Unless there's something else you want to add [addressing the prosecutor].

PROSECUTOR ROKLAN: *** I just want to make it clear, though, the dismissed counts in exchange for the plea come back.

THE COURT: Everything is back to square one. Every count in this indictment is right back in play.

Do you understand that?

MR. MCLEAN: Yes. PCR Hr'g. at 4; 8, Mar. 24, 2017.

Thereafter, the Court granted the PCR application and also installed Mr. Sparr as trial counsel. Within a few months, however, McLean began to disparage Mr. Sparr's efforts, filed a disciplinary complaint against him, and demanded to be separated from him. Because of the disciplinary complaint, Mr. Sparr also requested that he be allowed to withdraw. On September 6, 2017, Mr. Sparr was released from the case, and attorney Jay Canham, another veteran criminal defense attorney, was appointed to represent McLean, with this Court's admonition that no additional court-appointed attorneys would be furnished if McLean also failed to get along with Mr. Canham. McLean voiced his understanding and said he had no questions. Tr. 3-5, Sept. 6, 2017.

On January 8, 2018, Mr. Canham, at McLean's request, moved for a grant of bail and a bill of particulars. Both motions were denied. Mr. Canham, also at McLean's request, asked the Court to disqualify itself. The recusal motion was also denied. McLean again, notwithstanding this Court's prior admonitions, expressed dissatisfaction with Mr. Canham in a fashion similar to the criticism he had leveled at Mr. Sparr, and he asked that Mr. Canham also be relieved as counsel.

For all of his imprecations, aimed first at Mr. Sparr and then at Mr. Canham—and in each instance with trial looming closer—McLean nonetheless continued to lament his inability to proceed without the help of a lawyer. Accordingly, this Court, after extensive dialog with McLean, relented and appointed yet another attorney, Robert Kando (current counsel), to represent him. McLean has since complained about Mr. Kando, too; and he has filed a disciplinary complaint against him, as well. Tr. passim, Jan. 8, 2018.

McLean, at least to date, has not requested separation from Mr. Kando, who, to his credit, has maintained his willingness to represent him. He has, however, expressed a concern that McLean is not competent to proceed to trial because, according to Mr. Kando, McLean refuses to confer with him, engages in protracted monologues complaining about the court system, and is allegedly unable to assist in his defense. On March 15, 2018, at Mr. Kando's request, this Court ordered a competency evaluation pursuant to G.L. 1956 § 40.1-5.3-3(c).

Within a few days, McLean was interviewed at the Adult Correctional Institutions (ACI) by Dr. Barry W. Wall, Director of Forensic Psychiatry at Eleanor Slater Hospital (ESH), and his colleague Dr. Michael J. Byrne, a psychiatrist and a Fellow at ESH. They also administered what Dr. Wall referred to as a Competence Assessment Screening Tool for Persons with Mental Retardation (CAST-MR), a standardized psychological test which assists in determining competency to stand trial.² Thereafter, Drs. Wall and Byrne prepared a Competency Report as well as a Risk Assessment Evaluation. Neither document was intended to be discursive nor conclusive of McLean's mental condition; rather, the March 28, 2018 "competency" report was prepared in order "to trigger hospitalization so that we could do a more in-depth analysis of his intellectual capabilities. . . . It was a provisional assessment at the time. We wanted more testing which needed to occur in the hospital, and observation." Comp. Tr. at 105, 106, 107 (emphasis added). As Dr. Wall explained:

"[T]he first [March 28, 2018] examination is just a snapshot without really getting to know him, and the second examination is more in-depth, after the hospital has had the opportunity examine him 24 hours a day, seven days a week, to get anidea of what his capacities are, what his limitations are. And we've had a chance by that point to really observe him, to see if he has any symptoms of mental illness that might account for things or symptoms of drug use that might account for problems of intellectual disability. So it's more in-depth analysis because our entire team has had a chance to observe him round the clock for a long time in the hospital." Comp. Tr. at 121-22.

The Risk Assessment Evaluation was created principally to determine whether McLean was likely to endanger the ESH populace or himself. McLean's risk...