State v. Wolf

• Citation: 752 Utah Adv. Rep. 64,319 P.3d 757
• Decision Date: 24 January 2014
• Docket Number: No. 20110726–CA.,20110726–CA.
• Court: Court of Appeals of Utah
• Parties: STATE of Utah, Plaintiff and Appellee, v. Mitchell Edward WOLF, Defendant and Appellant.

319 P.3d 757

752 Utah Adv. Rep. 64

STATE of Utah, Plaintiff and Appellee,

v.Mitchell Edward WOLF, Defendant and Appellant.

No. 20110726–CA.

Court of Appeals of Utah.

Jan. 24, 2014.

Thomas M. Burton, for Appellant.

Sean D. Reyes and Karen A. Klucznik, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge CAROLYN B. McHUGH and Senior Judge JUDITH M. BILLINGS concurred. ¹

VOROS, Judge:

¶ 1 Mitchell Edward Wolf stood trial for charges that he stalked and threatened his long-time partner and one of her co-workers. Late at night after the first day of trial, Wolf shot himself in the stomach. When he did not appear in court the next morning, the trial court completed the trial in Wolf's absence. The jury convicted Wolf on all charges. Wolf appeals. We hold that because Wolf's trial counsel raised a bona fide doubt as to Wolf's competency to stand trial, the trial court was required to order a full hearing into Wolf's competency. We vacate Wolf's convictions and remand for further proceedings.

BACKGROUND ²

Wolf's Threats

¶ 2 Wolf and B.W. met in 1980 and began an “off and on” relationship. They moved in together and in 1990 had a child. Since 2000, B.W. has been employed at a kitchen equipment supply company.

¶ 3 Wolf and B.W.'s relationship ended in early 2007. According to B.W.'s trial testimony, in a series of phone calls over the following two years, Wolf made threats against B.W., their daughter K.W., and several of B.W.'s co-workers. In April 2008 Wolf called B.W. at work and demanded that she sell her house and quit her job or “all [her] dirty little secrets ... were going to be revealed by 10:00 the next morning.” In September 2008, one of Wolf's friends warned B.W. that if she refused to return Wolf's calls, Wolf would “go out in the desert and ... kill himself” and implicate B.W. in his death. When B.W. called Wolf and insisted that their relationship was over, Wolf ended the call by saying, “I could be [at your workplace] right now.” B.W. and her co-workers then began receiving numerous “prank calls” from someone they believed was Wolf. For a period of about six months, B.W. and her co-workers received approximately twenty phone calls each day in which the caller would either hang up or remain silent.

¶ 4 Wolf's calls to B.W. began to follow a pattern. Each time he called, he said, “[T]hree things, three things bitch.” B.W. testified that the “three things” were quitting her job, selling her house, and giving Wolf his things back. B.W. usually hung up the phone. During one call, though, B.W. asked Wolf, “What are you going to do?” Wolf responded, “[Y]ou know what I'm going to do.” Wolf made other statements that left B.W. with “serious concerns” for their daughter's safety.

¶ 5 One of B.W.'s co-workers (Co-worker) testified that he received a voicemail from Wolf that accused him of having an “improper relationship” with B.W. and made a threatening statement in reference to Co-worker's son. In the following months, Co-worker received numerous silent phone calls he believed were from Wolf. Finally Co-worker obtained a stalking injunction against Wolf. Wolf was not served with the injunction, however, and the calls continued.

¶ 6 In one telephone conversation, Co-worker testified, Wolf threatened Co-worker's family and other employees. According to Co-worker, Wolf said he had “purchased weapons,” that he knew how to make an explosive, and that he had rented a room at a hotel near Co-worker's workplace. Co-worker also stated that Wolf had said “he'd scoped out the homes” of other employees, had threatened that “innocents [would] be hurt,” and had stated that “when the pain [got] to be too much, he [would] carry out his plan.”

Wolf's Trial

¶ 7 Wolf was charged with two counts of making terroristic threats and two counts of stalking. Wolf attended the first day of trial but did not take the stand; he planned to testify the next day. Between midnight and 1:00 a.m. that night, Wolf called 911, identified himself, “stated that he was going to shoot himself in the stomach, [and] indicated he was being accused of doing things he had not done.” Police officers found him in a parked car with a handgun and a box of ammunition. He had, in fact, shot himself in the stomach.

¶ 8 In court the next morning, Wolf's attorney attempted to explain the situation to the judge:

[W]e have been able to confirm that [police] were involved in a self-inflicted shooting last night at approximately one a.m. Mr. Wolf shot himself in the stomach. He was transported to [a local hospital]. He had ER surgery.... [W]e were told by his friend ... that they stabilized him.... I was told that he is expected to be there approximately six days [and then] they will take him up to the VA Hospital and keep him on psychiatric observation. I've been told but not confirmed that they will keep him for 30 days there.

Wolf's attorney sought a continuance but assured the court that he would not be moving for a mistrial. While acknowledging that defendants who are voluntarily absent can be tried in absentia, Wolf's attorney stated that he believed he “could bring in psychologists who would say that [Wolf shooting himself in the stomach] showed he had gone to a level that ... with his mental illness ... [his absence] isn't truly a voluntary absence.”

¶ 9 The State opposed a continuance, insisting that “this is [Wolf's] pattern, this is what he does.” On “at least two prior occasions,” the prosecutor said, “right in anticipation of court and immediately previous to an upcoming court date, [Wolf] would do something in a similar manner, would get involuntarily admitted into a mental institution.” The prosecutor characterized Wolf's self-inflicted injury as “just another one of those voluntary delay tactics.”

¶ 10 Before the lunch recess, the trial court stated that it needed to confirm whether Wolf shot himself and that “if it was self-inflicted” it was the court's “determination that [it would] proceed with trial.” Based on the upsetting nature of the previous day's proceedings, the court concluded, “[T]he most likely scenario is ... that he's voluntarily absented himself and we can go forward.” Wolf's attorney asked the court to reconsider continuing trial to enable Wolf to receive a psychological evaluation. He also specifically raised the issue of competency:

[S]omeone who ... attempts to commit suicide has indications that he's not competent to proceed.... [Competency is] an issue that can be raised at any time if it becomes apparent [that a defendant's competency is in question,] and at this time I believe ... that [Wolf's] competency is clearly in question and I would ask [that the court] continue this trial so that we can get him properly evaluated for competency.

The court denied the request for a continuance, stating, “[W]e are going to proceed today with the trial in absentia.... Mr. Wolf's threat to take his own life has been persistent throughout all of these proceedings.... This appears to be nothing more than a tactic for delay.” The proceedings continued without Wolf, and the court did not explain to the jury why he was absent.

¶ 11 After the lunch recess, Wolf's attorney again raised the issue of competency:

I went back and reviewed Mr. Wolf's mental health records as well as the docket of this case before I was counsel. There [had] been a petition for competency ... raised [by Wolf's first attorney]. He then retained [his second attorney] who withdrew the petition. Looking through his medical history, I prepared a [second] petition and order for competency....

Wolf's attorney filed a brief competency petition. It closely resembled a competency petition the court had granted two years earlier, but it also included information related to Wolf's self-inflicted gunshot wound, which it characterized as a suicide attempt. When Wolf's attorney submitted the petition, the trial court said, “Well, I'm not sure what to say except it's a little too late since we're in the middle of a trial but the Court will receive it.”

¶ 12 The jury found Wolf guilty of electronic communication harassment, making a terroristic threat, and two counts of stalking (one a felony, the other a misdemeanor).³ On appeal, Wolf claims the trial court erred in declining to hold a competency hearing, in proceeding with the second day of trial in Wolf's absence, and in sentencing Wolf based on his felony stalking offense instead of his harassment offense.⁴

ISSUES AND STANDARDS OF REVIEW

¶ 13 Wolf first contends that the trial court erred when it declined to order a full competency hearing. A competency determination presents “a mixed question of fact and law.” State v. Woodland, 945 P.2d 665, 667 (Utah 1997). “The proper interpretationof the statutory standard for competency is a question of law.” State v. Robertson, 932 P.2d 1219, 1223 (Utah 1997) (citing State v. Lafferty, 749 P.2d 1239, 1243 (Utah 1988)), overruled on other grounds by State v. Weeks, 2002 UT 98, 61 P.3d 1000. Challenges centered on factual findings regarding competency, however, are “subject to a clearly erroneous standard of review.” Woodland, 945 P.2d at 667.

¶ 14 Wolf next contends that the trial court erred by allowing his trial to continue in his absence “without making a meaningful determination [of whether] Wolf had voluntarily absented himself.” Our resolution of the competency claim moots this claim. See Jensen v. IHC Hosps., Inc., 2003 UT 51, ¶ 131, 82 P.3d 1076.

¶ 15 Finally, Wolf contends that the trial court erred in failing to amend his conviction under State v. Shondel, 22 Utah 2d 343, 453 P.2d 146 (Utah 1969). “Our review under the Shondel rule focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling.” State v. Kent, 945 P.2d 145, 146 (Utah Ct.App.1997).

ANALYSIS

I. Competency

¶ 16 Wolf contends that the trial court erred when it declined to order a full...