State v. Wilkins
| Decision Date | 29 December 2022 |
| Docket Number | COA22-339 |
| Citation | 2022 NCCOA 911 |
| Parties | STATE OF NORTH CAROLINA v. JAMEY LAMONT WILKINS |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 1 November 2022.
Appeal by defendant from judgment entered 29 July 2021 by Judge Edwin G. Wilson, Jr., in Caswell County Superior Court. Nos 18 CRS 59-60, 50074; 19 CRS 163
Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith Clayton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt Orsbon, for defendant.
¶ 1 When the competency of a criminal defendant is questioned there are two sources of rights that can apply: statutory protections and constitutional ones. Our Supreme Court-repeatedly over many decades-has held that the statutory protections can be waived if not timely asserted by the defendant's counsel. The constitutional protections, by contrast, cannot be waived by failure to assert them.
¶ 2 In this appeal, Defendant Jamey Lamont Wilkins concedes that he is not raising a constitutional competency issue, and that he did not preserve his statutory competency issue in the trial court. So he asks this Court to reshape decades of settled law from our Supreme Court distinguishing statutory issues (waivable) and constitutional ones (nonwaivable) by creating a new subcategory of statutory competency cases that are treated the same way that our Supreme Court treats the constitutional ones.
¶ 3 That is not an appropriate task for this Court. We are an error-correcting court, not a law-making one. If, as Wilkins argues, the long line of cases concerning waiver of statutory competency should be subject to a new, court-created exception, that change must come from our Supreme Court.
¶ 4 In 2018, Defendant Jamey Lamont Wilkins was riding in the front passenger seat of an SUV when police pulled the vehicle over on suspicion of having thrown contraband into a nearby prison yard. Wilkins remained silent while officers searched the SUV. The search revealed two footballs on the floorboard behind Wilkins's seat that had been cut open, filled with drugs and other contraband, and duct-taped closed. Police also found a large sum of cash within the center console. Law enforcement arrested both Wilkins and the driver of the SUV.
¶ 5 The State charged Wilkins with multiple drug possession offenses, several counts of attempting to provide contraband to an inmate, and attaining habitual felon status. Two days later, Wilkins's counsel filed a motion requesting a competency hearing. At the competency hearing, Wilkins's counsel informed the trial court that, in addition to counsel's own concerns regarding his client's competency, jail staff reported that Wilkins was "exhibiting some odd behaviors" and had recommended an evaluation. The trial court entered an order finding that Wilkins's "capacity to proceed is in question." The order required the State to transport Wilkins to a mental health facility for a forensic evaluation.
¶ 6 That never happened. Wilkins was not transported to the mental health facility and he never received any competency evaluation. Instead, Wilkins was jailed for a brief period and then released on bail.
¶ 7 Several years later, in 2021, Wilkins's case went to trial. By this point, Wilkins had hired new counsel. His new counsel never asserted that the trial court's order requiring a competency evaluation had not been followed, and never asserted that Wilkins required a competency evaluation or hearing.
¶ 8 During the trial, the State elicited testimony from three witnesses concerning Wilkins's silence during the stop and search. Wilkins did not object to this testimony.
¶ 9 The jury acquitted Wilkins of attempting to provide contraband to an inmate but convicted him of the drug possession charges. Wilkins then pleaded guilty to attaining habitual felon status. The trial court consolidated the convictions into one judgment and sentenced Wilkins to a term of 51 to 74 months in prison. Wilkins timely appealed.
¶ 10 Wilkins first argues that the trial court erred because it ordered a competency evaluation but then proceeded to trial several years later without one. Although Wilkins never objected to the lack of a competency evaluation and hearing, he contends that "once a trial court finds a defendant's capacity to proceed is in question, the right to a competency determination cannot be waived."
¶ 11 Wilkins's argument is not an accurate statement of the law as it exists today. There are two potential sources of a criminal defendant's right to a competency hearing: constitutional and statutory. The constitutional right, which stems from the Due Process Clause, provides that when "a trial court possesses information regarding a defendant that creates sufficient doubt of his competence to stand trial to require further inquiry on the question," the trial court must conduct a competency hearing. State v. Sides, 376 N.C. 449, 458, 852 S.E.2d 170, 176 (2020). This constitutional right cannot be waived by the defendant because the "trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court" that meets the due process criteria. Id.; see also State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007). Importantly, Wilkins did not assert an argument under this due process standard in his appellate briefing and conceded at oral argument that he is not raising this due process claim.
¶ 12 Criminal defendants also can have a statutory right to a competency hearing that arises from Section 15A-1002 of our General Statutes. That provision states that when the competency of a defendant is questioned, the trial court "shall hold a hearing" to determine capacity to proceed:
N.C. Gen. Stat. § 15A-1002(a)-(b)(1) (emphasis added).
¶ 13 Ordinarily, this sort of compulsory statutory language might be considered a "statutory mandate" and fall within a long line of cases holding that compliance with the statute cannot be waived by failure to timely assert it to the trial court. See In re E.D., 372 N.C. 111, 121-22, 827 S.E.2d 450, 457 (2019) (collecting cases).
¶ 14 But beginning nearly half a century ago, our Supreme Court held that Section 15A-1002 was subject to ordinary preservation requirements and, thus, defendants must timely raise noncompliance with the statute or the issue is waived on appeal. State v. Young, 291 N.C. 562, 566, 231 S.E.2d 577, 580 (1977). Since Young, our Supreme Court repeatedly has held that "the statutory right to a competency hearing is waived by the failure to assert that right at trial" and if a defendant proceeds to trial without raising Section 15A-1002 with the trial court, the defendant's "statutory right to a competency hearing was therefore waived by the failure to assert that right at trial." Badgett, 361 N.C. at 259, 644 S.E.2d at 221; see also State v. King, 353 N.C. 457, 466, 466 S.E.2d 575, 584-85 (2001).
¶ 15 Wilkins argues that we should find his statutory competency argument preserved for appellate review by further subdividing the Supreme Court's precedent in Young, King, Badgett, and Sides. Wilkins contends that the Young, King, and Badgett cases should be interpreted to apply only when the trial court did not order an evaluation or otherwise inquire into the defendant's competency. But, if the trial court makes that inquiry-for example, by ordering an evaluation as occurred in this case-then Young, King, and Badgett no longer apply and the defendant's counsel need not raise the issue at trial in order to preserve it.
¶ 16 The flaw in this argument is that the Supreme Court in Young, King, Badgett, and the rest of this line of cases never made the sort of distinction that Wilkins asserts here. Instead, these cases focus solely on one factor: that the defendant proceeded to trial and entry of judgment without asserting the right to the hearing. There is no basis in any of these cases to draw factual distinctions that would permit some statutory competency issues to be waivable but not others. In these cases, the Supreme Court's holding was straightforward and categorical: the constitutional issue is not waivable; the statutory one is. See, e.g., King, 353 N.C. at 466, 466 S.E.2d at 584-85; Badgett, 361 N.C. at 259, 644 S.E.2d at 221; Sides, 376 N.C. at 458, 852 S.E.2d at 176. If this case presents a need for a new subcategory of statutory cases that are not waivable, like the corresponding constitutional ones, that change must come from our Supreme Court.
¶ 17 Having set out the applicable law, we hold that Wilkins's statutory competency argument is not preserved for appellate review. In 2018, shortly after Wilkins's arrest, his counsel questioned his competency and the trial court ordered that Wilkins be transported to a mental health facility for evaluation. That evaluation never took place and instead Wilkins was released on bail. Three years later, in 2021, Wilkins's case was called for trial and Wilkins appeared with new counsel. He proceeded to trial without raising any competency issues or requesting that the court conduct the evaluation and review it previously had ordered.
¶ 18 Under Young, King, Badgett and their progeny, the failure to assert the...
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