U.S. v. Collins

• Decision Date: 05 December 2005
• Docket Number: No. 04-2002.,04-2002.
• Citation: 430 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin Clyde COLLINS II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1260

430 F.3d 1260

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Clyde COLLINS II, Defendant-Appellant.

No. 04-2002.

United States Court of Appeals, Tenth Circuit.

December 5, 2005.

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, CO, for Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the briefs), Albuquerque, NM, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Melvin Clyde Collins II appeals his conviction on the ground that he was deprived of counsel at his competency hearing. At his competency hearing, the district court was presented with two issues: a motion to withdraw filed by Mr. Collins's lawyer and the issue of Mr. Collins's competency. The district court addressed the competency issue before the withdrawal motion. As a result, Mr. Collins's lawyer, believing that there had been a breakdown in the attorney-client relationship, did not comment on Mr. Collins's competency and did not introduce available evidence that may have affected the competency determination. Mr. Collins claims that this conduct constituted a constructive denial of counsel. Mr. Collins also appeals his sentence under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because Mr. Collins was not represented by counsel at his competency hearing, we VACATE the conviction and REMAND for a new trial consistent with Mr. Collins's constitutional rights.

I.

On April 23, 2002, Mr. Collins was charged with two counts of sexually abusing a minor under age sixteen and one count of sexually abusing a minor under age twelve, in violation of 18 U.S.C. §§ 2241(c), 2246(2)(A), 2246(2)(B), and 1152. The court appointed Mr. William L'Esperance to represent Mr. Collins. After his indictment, Mr. Collins filed, and the court granted, a motion requesting a psychological examination to determine whether he was competent to stand trial. Mr. Collins was evaluated by Bureau of Prisons psychologist, Dr. Jim Womack. After interviewing Mr. Collins, administering three personality tests, and interviewing Mr. Collins's wife, Dr. Womack diagnosed Mr. Collins with paranoid personality disorder. Dr. Womack did not diagnose Mr. Collins with schizophrenia or delusional disorder, despite Mr. Collins's statement that he was diagnosed with these disorders in childhood. Dr. Womack found Mr. Collins competent to stand trial. In his report, Dr. Womack wrote:

The defendant currently does not suffer from a mental disease or defect which would render him unable to understand the nature and consequences of the proceedings against him or to assist properly in his own defense. He evidenced a good command of court room personnel and procedures. He most likely will be a difficult client with whom to work; however, potential conflicts can be attributable to the client's personality disorder and not a psychotic process or cognitive deficiencies.

After the evaluation was completed, the court scheduled a competency hearing for December 2, 2002.

Before the competency hearing, Mr. Collins submitted a letter to the court requesting that his current counsel, Mr. William L'Esperance, be replaced. In this letter, Mr. Collins claimed that Mr. L'Esperance was lying to him, insulting both him and his wife, and colluding with the prosecution and the FBI. Mr. Collins also sent a letter to the New Mexico State Bar Association Disciplinary Board attempting to discredit Mr. L'Esperance. In response to this letter, Mr. L'Esperance filed a motion to withdraw, claiming that he questioned his ability to adequately communicate with Mr. Collins and noting that the lack of communication between himself and Mr. Collins hampered the investigation. Mr. L'Esperance filed his motion to withdraw on December 2, 2002—the date of Mr. Collins's competency hearing.

At the hearing, the court considered the issue of Mr. Collins's competency before addressing Mr. L'Esperance's pending motion to withdraw. The district court began the competency hearing by inquiring whether there was any issue as to competency in light of the competency evaluation submitted by Dr. Womack that found Mr. Collins competent to stand trial. Mr. L'Esperance responded by stating:

Your Honor, I will not comment on that. I have had new materials disclosed, including the defendant's DD-214 of the military records, site reports, and other matters that were not available to the reviewing staff. And under the circumstances that we are about this morning and the [withdrawal] motion I have filed, I will not comment on that.

R. Vol. IV, p. 3. The court then questioned the government on its perspective regarding competency. Government counsel informed the court that if the court were to grant Mr. L'Esperance's motion to withdraw, the issue of competency should be the "first item of business to be taken up by any new counsel" that would be appointed. The government also stated that, while it thought the competency evaluation "speaks for itself," the government found military records that "may be relevant to the new counsel to reconsider the competency issue." The court then asked the government to submit an order finding Mr. Collins competent to stand trial, but noted that "if the new attorney wants to revisit this issue, then [the court will] certainly . . . do that."

On December 5, 2002, the district court entered a written order finding Mr. Collins competent to stand trial. The order did not allude to the possibility that additional information, such as military records, was available but not considered, and did not mention the district court's willingness to revisit the competency issue with new counsel, which the court had expressed at the hearing. Mr. L'Esperance approved the order as "to form only" on behalf of Mr. Collins. On December 6, 2002, the district court entered an order permitting Mr. L'Esperance to withdraw as counsel. Mr. Troy Prichard was appointed as substitute counsel for Mr. Collins.

Seven months later, the grand jury returned a superseding indictment, amending the second count to allege that the victim was a Laguna Indian. At the pretrial conference, on September 9, 2003, Mr. Prichard renewed the issue of Mr. Collins's competency. Mr. Prichard informed the court that previous counsel had raised the issue of competency almost a year earlier, that Mr. Collins had been evaluated, and that the court had concluded he was competent. Mr. Prichard then stated that he was "concerned as to [Mr. Collins's] competence today, and specifically, his ability to meaningfully assist [Mr. Prichard] during his trial." Mr. Prichard further noted that he did "not sense a great deal of logic in terms of [his] client's comprehension of the issues and the consequences of this case." Mr. Prichard suggested that the court "have this [sic] same person that did the evaluation do just a quick review prior to trial." The district court denied Mr. Prichard's request for a renewed competency hearing. The court explained that Mr. Collins already had a competency hearing, that he was deemed competent to stand trial, and that the trial was scheduled for next week and would not be postponed.

The jury convicted Mr. Collins on three counts of sexual abuse. Before the sentencing hearing, Mr. Collins filed a motion for downward departure based on his extraordinary mental and emotional conditions. The court denied the motion. The court adopted the factual findings contained in the presentence report, including a finding that the victim was in Mr. Collins's custody, care and supervisory control. The court sentenced Mr. Collins to 292 months in prison. Mr. Collins now appeals his conviction and sentence.

II.

Mr. Collins claims that Mr. L'Esperance's lack of representation at the competency hearing and the district court's refusal to grant Mr. Prichard's request to revisit the issue of competency before trial amounted to a deprivation of Mr. Collins's Sixth Amendment right to counsel. He contends that he was constructively denied counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The government, in contrast, suggests that this issue is properly analyzed as a question of competence of counsel, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If so, the issue should be raised on collateral review rather than direct appeal, to permit the development of an evidentiary record that will allow a court to determine whether Mr. L'Esperance's conduct prejudiced Mr. Collins.

A. Sixth Amendment Violation

The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution. Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir.1993). Critical stages are those steps of a criminal proceedings that hold significant consequences for the accused. Bell v. Cone, 535 U.S. 685, 695-96, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Thus, a defendant is entitled to counsel at any proceeding where an attorney's assistance may avoid the substantial prejudice that could otherwise result from the proceeding. Coleman v. Alabama, 399 U.S. 1, 9 (1970). 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). We have not previously had opportunity to consider whether a competency hearing is a critical stage. Other circuits, however, have held that competency hearings are critical stages, and we agree. See Appel v. Horn, 250 F.3d 203, 215 (3d Cir.2001); United States v. Klat, 156 F.3d 1258, 1262 (D.C.Cir.1998); United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir.1992); Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir.1986). Indeed, the government does not contest that the competency hearing is a critical stage, at which the...