Thompson v. State

• Decision Date: 02 May 2012
• Docket Number: No. 4D10–4808.,4D10–4808.
• Citation: 88 So.3d 312
• Parties: Charles THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

88 So.3d 312

Charles THOMPSON, Appellant,

v.STATE of Florida, Appellee.

No. 4D10–4808.

District Court of Appeal of Florida,

Fourth District.

May 2, 2012.

Charles Thompson, Belle Glade, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the circuit court's summary denial of appellant's Rule 3.850 motion for postconviction relief. The claims raised in the motion lack merit. We write to address two of the claims and to clarify the legal standard that applies to postconviction claims of ineffective assistance of counsel related to a defendant's competency to proceed to trial or to enter a plea. We affirm the denial of the remaining claims without discussion.

Background

Appellant broke into the home of an 81–year old woman and sexually battered her. He was convicted after jury trial of sexual battery and burglary of an occupied structure and sentenced to two consecutive fifteen-year sentences. This court affirmed on direct appeal. Thompson v. State, 995 So.2d 979 (Fla. 4th DCA 2008) (table).

In the claims at issue, Appellant first asserts that his trial counsel was ineffective in failing to request a competency evaluation and in failing to demand a competency hearing. Appellant also asserts that the trial court abused its discretion in failing to sua sponte conduct a competency hearing. The latter aspect of Appellant's claim is procedural in nature, but underlying both of these claims is an implication of actual incompetency to proceed at the time of trial, a so-called “substantive incompetency” claim.

Analysis

An important distinction exists between procedural and substantive incompetency claims. See James v. Singletary, 957 F.2d 1562, 1569–74 (11th Cir.1992). A procedural claim alleges that a court erred in failing to follow procedures adequate to protect a defendant's right not to be tried while incompetent. A substantive incompetency claim, on the other hand, alleges that the defendant's due process rights were violated by being proceeded against while actually incompetent.

As discussed in this opinion, the legal standard that courts apply to procedural claims differs significantly from the standard that applies to claims of substantive incompetency. Federal courts in habeas corpus proceedings allow postconviction claims of substantive incompetency to be raised, but the standard is stringent and the burden is on the movant to establish a sufficient likelihood of actual incompetency.

In Florida state courts, neither a procedural nor a substantive competency claim of trial court error may be raised in a postconviction motion. Nelson v. State, 43 So.3d 20, 33 (Fla.2010). Florida courts, however, continue to recognize a “narrow” claim of ineffective assistance of counsel for failure to raise a defendant's alleged incompetency, see Jackson v. State, 29 So.3d 1161, 1162 (Fla. 1st DCA 2010), but the legal standard that applies to such claims is unsettled.

Procedural Pate Claims

The Supreme Court of the United States has long recognized that “the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A trial court's failure to sua sponte order a competency hearing can result in a denial of procedural due process. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

Florida Rule of Criminal Procedure 3.210(b) requires a court to schedule a competency hearing if, at any material stage of the criminal proceeding, the court has “reasonable ground to believe that the defendant is not mentally competent to proceed.” See also Scott v. State, 420 So.2d 595, 597 (Fla.1982) (recognizing that the court is obligated to schedule a hearing if there is reasonable ground to believe defendant may be incompetent). Rule 3.210 was enacted to satisfy the mandate of Drope and Pate by setting forth procedures sufficient to ensure that a defendant is not tried while incompetent. See Lane v. State, 388 So.2d 1022, 1025 (Fla.1980).

Pursuant to Pate, a rebuttable presumption of incompetency attaches if the defendant shows that the court failed to hold a competency hearing despite information creating a “bona fide” doubt as to competency. Nelson, 43 So.3d at 33 (citing James, 957 F.2d at 1570). Because of the difficulty or impossibility of retroactively determining competency, on direct appeal, a trial court's error in failing to order a competency hearing under Rule 3.210(b) generally results in reversal for a new trial. See Tingle v. State, 536 So.2d 202, 204 (Fla.1988). The Pate presumption is prophylactic—to ensure that courts do not systemically fail to adequately safeguard the criminal defendant's procedural due process right not to be tried while incompetent. The presumption does not apply in postconviction proceedings. Nelson 43 So.3d at 33. The net of procedural safeguards is broader in a direct appeal.

A Pate claim that the trial court erred in failing to follow procedures to ensure competency can and must be raised on direct appeal only. Nelson, 43 So.3d at 33;James, 957 F.2d at 1572;Bundy v. State, 538 So.2d 445, 447 (Fla.1989). Appellant's claim that the trial court abused its discretion in failing to sua sponte conduct a competency hearing is procedurally barred.

Substantive Incompetency Claims

A criminal defendant has a due process right not to be proceeded against while incompetent. Medina v. California, 505 U.S. 437, 440, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); Caraballo v. State, 39 So.3d 1234, 1252 (Fla.2010).

In Florida, a substantive incompetency claim can be raised on direct appeal only and is procedurally barred from being raised in a postconviction motion. Carroll v. State, 815 So.2d 601, 610 (Fla.2002); Patton v. State, 784 So.2d 380, 393 (Fla.2000); Johnston v. State, 583 So.2d 657, 660 (Fla.1991).

In the recent decision in Nelson, the Florida Supreme court rejected the postconviction movant's substantive incompetency claim determining that the claim was “procedurally barred because he failed to raise it on direct appeal.” 43 So.3d at 33.¹

Nevertheless, the court further explained that the claim of substantive incompetency lacked merit because the movant had not sufficiently shown that he was actually incompetent. Id. The court quoted with approval federal case law in habeas corpus proceedings: “[A] petitioner is entitled to an evidentiary hearing on a substantive incompetency claim if he or she ‘presents clear and convincing evidence to create a real, substantial and legitimate doubt’ as to his or her competency.” Id. (quoting James, 957 F.2d at 1573) (additional citation omitted).

Federal decisions permit substantive incompetency claims to be raised in collateral proceedings but apply the stringent standard set out above. Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir.1995). To show entitlement to a postconviction evidentiary hearing on a substantive incompetency claim, “the standard of proof is high [and] the facts must positively, unequivocally, and clearly generate the legitimate doubt.” Id. (citations omitted). “[T]he petitioner must present a preponderance of ‘clear and convincing evidence’ of ‘positive’, ‘unequivocal’, and ‘clear’ facts ‘creating a real, substantial and legitimate doubt’ as [to] his competence.” Pardo v. Sec' y, Fla. Dep't. of Corr., 587 F.3d 1093, 1101 (11th Cir.2009) (quoting Medina, 59 F.3d at 1106).

Both Florida and federal decisions addressing postconviction claims involving alleged incompetence focus on actual prejudice, that is, whether the defendant was actually incompetent at the relevant time.

Ineffective Assistance Claims

Nelson also addressed a claim of ineffective assistance of counsel for failure to request a competency determination. 43 So.3d at 29. The court found that the movant had not established deficient performance by counsel. Id. Although the court did not determine whether prejudice was established, the court quoted Futch v. Dugger, 874 F.2d 1483 (11th Cir.1989), which states, “In order to demonstrate prejudice from counsel's failure to investigate his competency, a petitioner has to show that there exists ‘at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.’ ” Id. at 1487 (emphasis supplied) (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.1988)); see also Johnston v. State, 63 So.3d 730, 741 (Fla.2011).

We agree that a postconviction movant claiming ineffective assistance of counsel for failure to investigate or request a competency determination must establish “ at least ” a reasonable probability that he or she would have been found incompetent. We see no reason, however, why the standard should differ depending on whether the postconviction claim is couched as “substantive incompetency” or as “ineffective assistance of counsel.”

The general rule is that procedurally barred claims of trial court error cannot be raised in postconviction proceedings under the guise of ineffective assistance of counsel. Israel v. State, 985 So.2d 510, 520 (Fla.2008). Arguably, this rule would bar an ineffective assistance of counsel claim involving alleged incompetency. For example, in Patton, the Florida Supreme Court held that the defendant's claim of ineffective assistance was not sufficient to overcome the procedural bar to the competency issue which should have been raised on direct appeal. 784 So.2d at 393.

Courts, however, have recognized postconviction claims of ineffective assistance of counsel in connection with counsel's handling of a defendant's competency to proceed. See, e.g., Jackson v. State, 29 So.3d 1161 (Fla. 1st DCA 2010); Coker v. State, 978 So.2d 809 (Fla. 1st DCA 2008). We now clarify the standard that applies to such a claim.

To establish ineffective assistance of counsel, the movant must show both counsel's deficient...