STATE v. DEBRA A. E., 188 Wis.2d 111 (1994)

523 N.W.2d 727

Supreme Court of Wisconsin.
Nos. 92-2974-CR, 93-0737-CR.Oral argument September 9, 1994. —
Decided November 23, 1994.

(On certification from the court of appeals.)

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APPEAL from an order of the Circuit Court for La Crosse County, Peter G. Pappas, Circuit Court Judge Reversed and remanded.

APPEAL from an order of the Circuit Court for Brown County, Peter J. Naze, Circuit Court Judge Reversed and Remanded.

For the defendant-appellant, Debra A.E., there were briefs (in the court of appeals and supreme court) and oral argument by Keith A. Findley, assistant state public defender.

For the defendant-appellant, Timothy A. Nesja, there were briefs (in the court of appeals) by George A. Limbeck and Timothy A. Nesja, Milwaukee and oral argument by George A. Limbeck.

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For the plaintiff-respondent the cause was argued by Sally Wellman, assistant attorney general and Mary Bowman, assistant attorney general, with whom on the brief (in the court of appeals) was James E. Doyle, attorney general.

SHIRLEY S. ABRAHAMSON, J.

Timothy A. Nesja appeals from an order of the circuit court for Brown county, Judge Peter J. Naze; Debra A.E. appeals from an order of the circuit court for La Crosse county, Judge Peter G. Pappas. Each appeal is from an order denying the defendant’s motion for an evaluation of the defendant’s competency to participate in postconviction relief proceedings.[1] The appeals have been consolidated and are before the court on certification from the court of appeals pursuant to sec. (Rule)809.61, STATS. 1991-92. We reverse both orders and remand the matters to the respective circuit courts to determine whether to rule on the defendants’ competency.

Two issues are presented to this court. The primary issue raised in both appeals is the appropriate role of the circuit court when counsel requests a ruling on a defendant’s competency during postconviction relief proceedings under sec. 809.30, STATS. 1991-92.[2]

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We conclude that a circuit could should determine a defendant’s competency when it has reason to believe that the defendant is unable, in the postconviction relief proceedings under sec. 809.30, STATS. 1991-92, to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding. As we explain in more detail later, in order to protect incompetent defendants’ right to meaningful postconviction relief, as well as the defendants’ and the public’s interest in expediting postconviction relief and reaching a final determination on the merits the following procedures are to be applied as appropriate: 1) continuation of postconviction relief proceedings, 2) continuances or enlargement of time limits for postconviction relief, 3) appointment of temporary guardians and 4) permitting defendants who regain competency to raise issues at a later proceeding that could not have been raised earlier because of incompetency.

The second issue, raised only in Nesja’s appeal, is whether this court should consider a pro se brief from an indigent defendant when a brief has been submitted by assigned counsel. We conclude that a defendant has no constitutional right to concurrent self-representation and representation by counsel. Nevertheless an appellate court may, in its discretion, consider the issues raised in the defendant’s pro se brief. We conclude that none of the issues defendant Nesja raises in his pro se brief has merit.

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I.
The facts of the two cases are not in dispute for the purposes of this appeal.

A.
Timothy Nesja was convicted August 30, 1989, of aggravated battery and battery, both with a repeater enhancement. Nesja’s competency to stand trial was not raised. On October 2, 1989, the Brown County circuit court sentenced Nesja to nineteen years in prison, consecutive to any other sentence he was serving at the time.

Following the sentencing hearing, Nesja and his trial counsel executed a form entitled “Instructions for Postconviction Relief,” indicating Nesja’s intention to seek postconviction relief and trial counsel’s agreement to file the necessary notice of intent to pursue such relief.

On June 5, 1992, Nesja’s newly-appointed counsel filed a notice of intent to seek postconviction relief and on November 16, 1992, filed a postconviction motion in the circuit court seeking a new trial pursuant to sec. 809.30, STATS. 1991-92.

Subsequently, relying on sec. 971.14, STATS. 1991-92, Nesja’s counsel filed a motion for competency proceedings. At the hearing on this motion, Nesja’s counsel stated that his client had sent him “volumes of letters” indicating “delusional thinking” and that Nesja was unable to assist counsel in determining the merit of potential issues on appeal.

On February 19, 1993, the circuit court denied Nesja’s motions for a new trial and competency proceedings. Nesja’s counsel filed a notice of appeal on March 15, 1993, challenging, inter alia, the circuit

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court’s denial of the motion for competency proceedings.

B.
Mental health and competency questions have permeated Debra A.E.’s case since its inception. She was arrested on June 24, 1991, and charged with resisting an officer and battery to a public officer. The charges arose during an incident in which she exhibited signs of mental incompetency.

During initial court proceedings both prosecuting and defense counsel questioned Debra A.E.’s competency. The circuit court found her incompetent to be tried, and she received treatment at the Winnebago Mental Health Institute. The circuit court later found her sufficiently competent to stand trial.

On February 3, 1992, following a jury trial, Debra A.E. was convicted on both counts. The circuit court sentenced her on March 30, 1992, and that same day her trial attorney filed a notice of intent to seek postconviction relief.

New counsel was appointed to represent Debra A.E. in postconviction relief proceedings. Counsel attempted to discuss with Debra A.E. the objectives and issues she wished to pursue on appeal. Debra A.E. did not speak with counsel during his visit to Taycheedah Correctional Institution, did not acknowledge his presence in any way, and did not respond to a letter he sent following his visit.

Because Debra A.E.’s counsel had a good faith doubt about her competency to make decisions regarding further legal proceedings or to assist in such proceedings, counsel filed a motion with the circuit court requesting competency proceedings under sec. 971.14, STATS. 1991-92. The circuit court denied the

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motion in a one sentence order, without a hearing. Debra A.E.’s attorney appealed the denial to the court of appeals.

Debra A.E.’s counsel asserts that he has no way of knowing if she is willing to accept the risks of pursuing postconviction relief. He conjectures, however, on the basis of the trial record, that she might prefer not to do so. Since she probably would be released from prison before postconviction relief concluded,[3] she might choose to avoid the possible ordeal of another trial and the concurrent danger of a more severe sentence.

C.
An essential facet of these cases is the nature of the postconviction relief that Nesja and Debra A.E. were seeking at the time each requested competency proceedings. Nesja and Debra A.E. are at different stages in the process of pursuing postconviction relief under sec. 809.30, STATS. 1991-92.[4] Section 809.30

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(including sec. 974.02), grants defendants the right to raise three challenges after sentencing.

First, a defendant may bring an appeal as of right challenging the conviction or sentence. This appeal is directed to the court of appeals and begins with the filing of a notice of intent to pursue postconviction relief. Section 809.30 (2)(b), STATS. 1991-92. The notice does not commit a defendant to prosecuting an appeal.[5]
To continue with the appeals process, a defendant must file a notice of appeal. Section 809.30 (2)(h), STATS. 1991-92.

Second, a defendant may file a motion for postconviction relief with the circuit court. Such motions may request remedies already sought at and rejected by the circuit court such as dismissal, mistrial or objection to jury instructions, or they may raise new issues such as new evidence or allegations of ineffective assistance of counsel. A defendant provisionally initiates this process by filing a notice of intent to pursue postconviction relief, but filing such notice does not obligate a defendant to pursue postconviction relief. To initiate proceedings a defendant must file a motion seeking postconviction relief.

Third, a defendant whose motion for postconviction relief has been denied by the circuit court can appeal the order of denial to the court of appeals. This appeal can be combined with an appeal as of right challenging the underlying conviction. Section 809.30 (2)(j), STATS. 1991-92.

Nesja’s case falls under the third scenario. His motion for postconviction relief was denied by the

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circuit court. His notice of appeal challenges both the denial of his motion for postconviction relief and his underlying conviction.

Debra A.E. has filed only a notice of intent to seek postconviction relief with the circuit court. She has taken no further steps toward securing postconviction relief.

II.
The first question we are asked to resolve is the appropriate role of the circuit court when counsel requests a competency determination for a defendant during postconviction relief proceedings. This question of law is one of first impression in this state.[6] The decisions of other states provide little guidance. Because competency is a focal point of this question, we begin by describing the standard of competency required for initiating or continuing postconviction relief proceedings under sec. 809.30, STATS. 1991-92.

Competency is a contextualized concept; the meaning of competency in the context of legal proceedings changes according to the purpose for which the competency

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determination is made.[7] Whether a person is competent depends on the mental capacity that the task at issue requires.[8] One task required of defendants during postconviction relief is to make the decision to proceed with or forego relief. The client

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must decide whether to file an appeal and what objectives to pursue, although counsel may decide what issues to raise once an appeal is filed.[9] As the court acknowledged in State ex rel. Flores v. State, 183 Wis.2d 587, 607, 516 N.W.2d 362 (1994), “the defendant may not wish to appeal based on any number of personal, practical, or even idiosyncratic reasons.” Flores, 183 Wis.2d at 607. Furthermore, in motions for postconviction relief filed in a circuit court, the defendant may be required to assist counsel in raising new issues and developing a factual foundation for appellate review.[10]

Based on the tasks that may be required of defendants seeking postconviction relief, we conclude that a defendant is incompetent to pursue postconviction relief under sec. 809.30, STATS. 1991-92, when he or she is unable to assist counsel or to make decisions committed by law to the defendant with a reasonable degree of rational understanding.[11]

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The standard of competency is, however, not the fulcrum of the dispute. On careful analysis, the real controversy between the parties does not even involve the propriety of a circuit court invoking its authority to

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adjudge a defendant’s competency during postconviction relief proceedings.

The state expressly joins the defendants in the goal of protecting defendants’ fair opportunity to pursue postconviction relief as of right.[12] As the state appreciates, the federal constitutional due process guarantee mandates fair procedures on appeals as of right, including appointment of counsel for indigent defendants and effective assistance of counsel.[13] The parties further agree that a circuit court has the power to rule on a defendant’s competency when appropriate. As the state acknowledged at oral argument, a circuit court competency ruling may be a useful tool for protecting defendants’ rights and interest in postconviction relief proceedings, although the state cautions that such rulings involve cost and logistic problems. Finally, the parties agree that the statutes do not require circuit courts to rule on competency during postconviction relief proceedings.[14]

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The real point of difference between the state and the defendants (or at least defendant Debra A.E.) is the way in which courts and counsel should respond to defendants whom a court adjudicates incompetent during postconviction relief proceedings. The defendants argue that, at least before a defendant has filed a notice of appeal or a motion for postconviction relief under sec. 809.30, time intervals for seeking postconviction relief remedies should be enlarged, and the circuit court should order the defendant treated in the least restrictive environment to restore the defendant to competency for purposes of initiating postconviction relief proceedings. Such treatment, according to the defendants, is subject to a defendant’s right to refuse treatment. Defense counsels’ position is that attempts to render a defendant competent are required to protect a defendant’s right to pursue postconviction relief and to receive effective assistance of counsel. The state rejects defendants’ new that protecting a defendant’s right to pursue postconviction relief requires court-ordered treatment. It argues that incompetent defendants’ interests may be protected without a circuit court ordering the state to restore the defendant to competency for purposes of postconviction relief proceedings.

The court’s goal, then, is to fashion a process through which circuit courts and counsel can manage the postconviction relief of alleged incompetent defendants

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while protecting defendants’ fair opportunity for postconviction relief and promoting the effective administration of the judicial system. We conclude that ordinarily this process need not include a court order for treatment to restore competency. Meaningful postconviction relief can be provided even though a defendant is incompetent.

The parties’ concepts of how circuit courts and counsel should manage the postconviction relief proceedings of alleged incompetent defendants, though divergent on the issue of ordering treatment, intersect at four key points which are the bases of the process we prescribe for managing the postconviction relief of alleged incompetent defendants. The parties agree 1) that defense counsel should proceed with postconviction relief on a defendant’s behalf, even if the defendant is incompetent, when issues rest on the trial court record and involve no risk to the defendant; 2) that time intervals for postconviction relief may be enlarged; 3) that defense counsel can seek appointment of a temporary guardian when an incompetent defendant is incapable of making a decision that the law requires the defendant to make;[15] and 4) that a defendant who is incompetent at the time postconviction relief is sought should, after regaining competency, be allowed to raise issues that could not be raised during postconviction relief proceedings because of incompetency.[16]

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These points give shape to the process we prescribe. It is as follows:

Competency Ruling. We conclude that after sentencing, if state or defense counsel has a good faith doubt about a defendant’s competency to seek postconviction relief, counsel should advise the appropriate court of this doubt on the record and move for a ruling on competency. The court shall honor the request when the court has reason to doubt a defendant’s competency.[17]
Reason to doubt a defendant’s competency may be raised, for example, by a motion setting forth grounds for belief that the defendant lacks competency, by evidence presented in the proceedings, by the defendant’s colloquies with the court, or by the defendant’s courtroom demeanor.[18] The court may, sua sponte, raise the issue of reason to doubt a defendant’s competency.

If the court determines that a reason to doubt a defendant’s competency exists, it shall, as an exercise of its discretion, determine the method for evaluating a defendant’s competency, considering the facts before it

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and the goals of a competency ruling. The method of evaluation will vary depending on the facts and on whether and where the defendant is incarcerated. A court may rely on the affidavits of counsel, a stipulation, or the court’s observance of the defendant, or may order an examination of the defendant by a person with specialized knowledge. A circuit court may also, in its discretion, hold a hearing before determining a defendant’s competency. In conducting any hearing the circuit court should be guided by sec. 971.14 (4), STATS. 1991-92, to the extent feasible.

A ruling on a defendant’s competency during postconviction proceedings serves three purposes. One, it sets the stage for defense counsel to seek appointment of a temporary guardian to make decisions that are committed by law to the defendant personally, not to counsel.

Two, a ruling on competency during postconviction relief proceedings enables a circuit court to consider a defendant’s assertion at a later proceeding, such as a sec. 974.06 motion, that the defendant did not raise an issue at an earlier proceeding because he or she was incompetent. The state argues that a competency determination may not be needed. The state assumes that a defendant seeking to raise new issues at a later proceeding will not have difficulty proving prior incompetency.[19]
However, “a retrospective determination of

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an accused’s competency . . . is inherently difficult.”[20]
Assessing competency during postconviction relief proceedings creates a record of a defendant’s mental capacity, thus eliminating the difficulty of attempting to measure that capacity months or years after the period in question.

Three, a competency determination may aid a circuit court in determining whether “it appears that counsel is necessary” in a later sec. 974.06 motion.[21]
Continuation of Postconviction Relief Proceedings.
Pending the determination of competency and even after a determination of incompetency, defense counsel should initiate or continue postconviction relief on a defendant’s behalf when any issues rest on the circuit court record, do not necessitate the defendant’s assistance or decisionmaking, and involve no risk to the defendant.[22] We agree with the parties that

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requiring defense counsel to go forward with postconviction relief to the extent feasible ensures that an alleged incompetent or incompetent defendant will not suffer from the delay of meritorious claims.[23]
Continuances or Enlargement of Time Limits.
Pending a ruling on a defendant’s competency or after a ruling of incompetency, if defense counsel cannot initiate or continue postconviction relief on the defendant’s behalf because issues necessitate defendant’s assistance or decisionmaking, defense counsel may request a continuance or enlargement of time for filing the necessary notices or motions for postconviction relief. Section 809.82 (2), STATS. 1991-92.[24]

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Appointing Temporary Guardians. If a defendant is ruled incompetent, defense counsel may request the appointment of a guardian to make decisions that the law requires the defendant to make. Section 880.15, STATS. 1991-92. See also sec. 880.33 (3), STATS. 1991-92. Supreme Court Rule 20:1.14 (b) provides that “[a] lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.” This rule suggests the appointment of a temporary guardian to instruct defense counsel whether to initiate postconviction relief and, if so, what objectives to seek.

Raising Issues After Regaining Competency.
Defendants who are incompetent at the time they seek postconviction relief should, after regaining competency, be allowed to raise issues at a later proceeding that could not have been raised earlier because of incompetency.[25] In State v. Escalona-Naranjo, 185 Wis.2d 169, 517 N.W.2d 157 (1994), the court held that a defendant could not raise an ineffective assistance of counsel claim in a sec. 974.06 motion when the issue could have been raised on direct appeal. The state

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contends, and we agree, that Escalona will not bar an incompetent defendant from invoking sec. 974.06 after being restored to competency. An issue not raised during postconviction relief because of a defendant’s incompetency cannot be equated with an issue that could have been, but was not, litigated on direct appeal.

The defendants argue that because an incompetent defendant, upon regaining competency, is limited to sec. 974.06 and habeas corpus relief, such a defendant may lose the right to litigate on direct appeal under sec. 809.30 nonconstitutional issues which could not be raised because of incompetency. We understand the defendants’ concern. However, defendants have not been able to identify a nonconstitutional issue that cannot be raised on direct appeal due to a defendant’s incompetency. Absent even a hypothetical to illustrate this contention, this court cannot decide what steps, if any, would be necessary to protect such a defendant’s right to appeal on nonconstitutional grounds.

The process we prescribe, supported by significant consensus of the parties, satisfies the interests of alleged incompetent defendants and the public in expediting postconviction relief and reaching a final determination on the merits. Accordingly, we reverse the orders denying Nesja and Debra A.E. competency proceedings and direct the circuit courts and counsel to proceed in each of these cases in a manner consistent with this opinion.

III.
Finally, we address the second issue presented by defendant Nesja, of whether this court should consider his pro se brief despite the fact that his counsel

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appointed by the State Public Defender’s Office has also filed a brief on his behalf.

The jurisdictions that have considered whether a defendant is entitled to this “hybrid” or “dual” representation on appeal have concluded that a defendant represented by counsel has no right to supplement counsel’s brief with a pro se brief.[26] This is an issue of

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first impression in Wisconsin, although the court has held that no constitutional right exists to hybrid representation at trial.[27]

We conclude that a defendant does not have a constitutional right to hybrid representation on appeal or review by this court. Rejecting a constitutional right to hybrid representation promotes orderly postconviction relief proceedings for several reasons. First, the focus of an appeal is primarily on the law. A defendant is not likely to have the same understanding of the law as an attorney does. Second, the arguments raised in a pro se brief may contradict and undermine the issues advanced in counsel’s brief. Third, the consideration of every argument that a defendant chooses to raise, in addition to those an attorney submits, could strain judicial resources. Finally, a defendant represented by counsel has alternative means of advancing issues a court should consider. The defendant may terminate appellate counsel’s representation and proceed pro se, or the defendant may allow postconviction relief to continue based on counsel’s brief and then seek relief on the grounds of ineffective assistance of appellate counsel.

Even though a defendant represented by counsel does not have a constitutional right to file a pro se brief on appeal when counsel has filed a brief, a court is not precluded from exercising its discretion to accept and consider a defendant’s pro se appellate brief.[28] To avoid

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possible further litigation, we shall consider Nesja’s pro se brief.[29]

Nesja’s pro se brief is not easy to understand. Nesja appears to challenge the bench trial, given that Judge Naze was the Brown county district attorney when Nesja was prosecuted in a previous criminal case.[30] We conclude that this claim has no merit. Section 757.19 (2)(c), STATS. 1991-92, which mandates

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disqualification when a judge previously acted as counsel to any party in the same action or proceeding, is not applicable. There is no showing that Judge Naze had acquired any knowledge about the case at bar while he was district attorney. Furthermore, there is no showing that Judge Naze determined that he could not, or it appeared that he could not, act in an impartial manner. Section 757.19 (2)(g), STATS. 1991-92; Jeffrey M. Shaman, Steven Lubet, and James J. Alfini, Judicial Conduct and Ethics, secs. 5.10, 5.16 (1990).

Nesja’s second argument appears to be that his conviction should be reversed because the time periods for postconviction relief were enlarged. Nesja shows no prejudice from any delay, and therefore this claim has no merit.

For the reasons set forth, we reverse the circuit courts’ orders denying Nesja’s and Debra A.E.’s motions for competency proceedings. We conclude that a circuit court should rule on defendants’ competency when there is reason to doubt a defendant’s competency. Accordingly we reverse the orders of the circuit courts and remand the matters for proceedings consistent with this opinion.

By the Court. The orders of the circuit courts are reversed and the causes remanded.

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